Farah v The Queen - [2019] VSCA 300

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0179

SHADI FARAH	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 December 2019
DATE OF JUDGMENT:	12 December 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 300
JUDGMENT APPEALED FROM:	[2019] VCC 1313 (Judge McInerney)

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CRIMINAL LAW – Appeal – Sentence – Conspiracy to commit common assault – Total effective sentence of 9 months’ imprisonment and 3 year Community Correction Order – Whether sentencing judge erred in sentencing applicant on basis of intention to cause injury to victim or that ‘serious assault’ was planned – Specific error by sentencing judge vitiating sentencing discretion – Whether sentencing judge failed to afford applicant procedural fairness – Denial of procedural fairness – Appeal allowed – Applicant resentenced to total effective sentence of 6 months’ imprisonment – De Simoni v The Queen (1981) 147 CLR 386 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Dann QC	Theo Magazis & Associates
For the Respondent	Mr J C J McWilliams	Ms A Hogan, Acting Solicitor for Public Prosecutions

PRIEST JA
WEINBERG JA:

On 11 April 2019, the applicant pleaded guilty to a single charge of conspiracy to commit common assault.[1] This offence carries a maximum penalty of 5 years’ imprisonment.
[1]Crimes Act 1958, ss 320 and 321 (‘Crimes Act’).

On 16 August 2019, the applicant was sentenced to a term of 9 months’ imprisonment, in combination with a 3 year Community Correction Order (‘CCO’). It should be noted that the terms of that order concerned supervision, treatment and rehabilitation. There were no work requirements.

The applicant now seeks leave to appeal against that sentence. There are three proposed grounds of appeal. They are as follows:

Ground 1 — The Learned Sentencing Judge erred in sentencing the Applicant on the basis that:
a)there was an intention to cause injury to the proposed victim; and
b)the scope of the agreement could be clearly assessed by reference to an intercepted phone call in which — as a result of the “serious assault” that was planned — the proposed victim would not be able to hold scissors anymore.

Ground 2 — The sentencing discretion has miscarried in circumstances where the Learned Sentencing Judge had indicated that he did not want to hear further submissions from the Applicant’s counsel — but then proceeded to impose a 9 month period of imprisonment upon the Applicant — in circumstances where it had been previously submitted on behalf of the Applicant that he should not be returned to prison.
Ground 3: The Learned Sentencing Judge erred in his approach to section 5(4) of the Sentencing Act 1991 (Vic).

For the reasons that follow, we would grant leave to appeal on grounds 1 and 2, but not ground 3. We would set aside the sentence imposed below, and resentence the applicant to 6 months’ imprisonment, but would not impose a CCO.

Circumstances surrounding the offending

The applicant was at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Farah v The Queen

Details

AGLC: Shadi Farah v The Queen [2019] VSCA 300
Case: [2019] VSCA 300
Decision Date: 12 December 2019

CaseChat Overview and Summary

Farah was convicted of conspiracy to commit a common assault. The appeal to the High Court was against the sentence imposed by the sentencing judge, who had ordered a total effective sentence of nine months' imprisonment and a three-year community correction order. Farah challenged the sentence on several grounds, including the basis of the sentencing, the process followed by the judge, and the specific error made by the judge that affected the sentencing discretion.

The legal issues included whether the sentencing judge erred in sentencing Farah based on the intention to cause injury to the victim or the notion that a 'serious assault' was planned. Additionally, Farah argued that the sentencing judge made a specific error that vitiated the sentencing discretion and failed to afford him procedural fairness. The appeal raised the question of whether these errors were significant enough to warrant a re-sentencing.

The court examined the principles laid down in De Simoni v The Queen, which state that specific errors in the sentencing process can vitiate the sentencing discretion and result in a procedurally unfair outcome. The court found that the sentencing judge had indeed made an error by basing the sentence on the intention to cause injury, rather than the actual harm caused. Furthermore, the court held that this error vitiated the sentencing discretion, leading to a procedurally unfair outcome. Consequently, the appeal was allowed, and Farah was resentenced to a total effective sentence of six months' imprisonment.

Orders