Fazal v The King - [2024] VSCA 161

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0220

MAIWAND FAZAL	Applicant
v
THE KING	Respondent

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JUDGES:	BOYCE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 June 2024
DATE OF JUDGMENT:	12 July 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 161
JUDGMENT APPEALED FROM:	[2023] VCC 1970 (Judge Morrish)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

CRIMINAL LAW – Application for leave to appeal – Sentence – Conduct endangering life – Firearm offences – Possessing a drug of dependence – Handling stolen goods – Whether judge was correct to find that applicant possessed firearms for the purpose of criminal activity – Whether total effective sentence was manifestly excessive – Leave to appeal refused.

Criminal Procedure Act 2009, s 280(1)(b).

Berichon v The Queen (2013) 40 VR 490, applied; R v Storey [1998] 1 VR 359; Acciarito v The Queen [2019] VSCA 264; Sultan v The King [2022] VSCA 205, considered; R v Graham (2007) 178 A Crim R 467, discussed.

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Counsel
Applicant:		Mr P J Smallwood
Respondent:		Mr JCJ McWilliams
Solicitors
Applicant:	Lauren Tye Legal
Respondent:	Office of Public Prosecutions

BOYCE JA:

On 2 October 2023, the applicant pleaded guilty in the County Court to charges contained in Indictment M11317106. The charges were as follows: two charges of handle stolen goods (one rolled-up),[1] two charges of possession of an unregistered general category handgun,[2] one charge of conduct endangering life,[3] two charges of possession of a drug of dependence,[4] and one charge of possession of an unregistered category A longarm.[5] The applicant also pleaded guilty to the following related summary offences: two charges of possession of cartridge ammunition,[6] one charge of assault with a weapon (rolled-up),[7] one charge of deal with property suspected of being proceeds of crime,[8] and one charge of non-prohibited person in possession of a category B longarm without a licence.[9]
[1]Contrary to s 88 Crimes Act 1958.
[2]Contrary to s 7B Firearms Act 1996.
[3]Contrary to s 22 Crimes Act 1958.
[4]Contrary to s 73 Drugs Poisons & Controlled Substances Act 1981.
[5]Contrary to s 6A(1) Firearms Act 1996.
[6]Contrary to s 124(1) Firearms Act 1996.
[7]Contrary to s 23 Summary Offences Act 1966.
[8]Contrary to s 195 Crimes Act 1958.
[9]Contrary to s 6(2) Firearms Act 1996.
On 3 November 2023, the applicant was sentenced as follows.

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Handle stolen goods	15 years	18 months’ imprisonment	6 months
2	Possession of an unregistered general category handgun	1st offence: 600 penalty units or 7 years. 2nd or subsequent offence: 1200 penalty units or 10 years	9 months’ imprisonment	3 months
3	Conduct endangering life	10 years	3 years	Base
4	Possession of a drug of dependence	400 penalty units or 5 years or both	18 months’ imprisonment	6 months
5	Possession of an unregistered…

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 Fazal v The King

Details

AGLC: Fazal v The King [2024] VSCA 161
Case: [2024] VSCA 161
Decision Date: 12 July 2024

CaseChat Overview and Summary

The applicant, Fazal, sought leave to appeal against his sentence imposed by a single judge for various criminal offences. The charges included conduct endangering life, firearm offences, possessing a drug of dependence, and handling stolen goods. The application for leave to appeal was determined pursuant to section 315 of the Criminal Procedure Act 2009. The primary legal issues the court needed to address were whether the judge was correct in finding that the applicant possessed firearms for the purpose of criminal activity, and whether the total effective sentence was manifestly excessive.

The court considered the relevant authorities and concluded that the judge's findings were supported by the evidence. The court found that there was no error in the judge's assessment of the applicant's possession of firearms for criminal purposes. The court also held that the total effective sentence was not manifestly excessive, taking into account the seriousness of the offences and the need for general deterrence. The court referred to cases such as Berichon v The Queen, R v Storey, Acciarito v The Queen, Sultan v The King, and R v Graham to support its reasoning.

Based on the above findings, the court refused the applicant's application for leave to appeal. The court held that there was no arguable ground of appeal that would merit the grant of leave. The court also noted that the applicant had not demonstrated that the sentence imposed was manifestly excessive or that there was any other compelling reason to grant leave to appeal. The applicant's application for leave to appeal was therefore dismissed.

Orders