Ghannoum v The Queen - [2019] VSCA 25

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0252

GEORGE GHANNOUM	Appellant
v
THE QUEEN	Respondent

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JUDGES:	WHELAN AP and NIALL JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 February 2019
DATE OF JUDGMENT:	19 February 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 25
JUDGMENT APPEALED FROM:	[2018] VCC 1762 (Judge Higham)

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CRIMINAL LAW – Application for leave to appeal against sentence – Armed robberies with two co-offenders – Ground of appeal unjustifiable disparity of sentence – Co-offenders’ conduct more serious – One co-offender youthful first offender, the other with previously unrecognised intellectual disability – Differentiation in sentence reasonably open – Green v The Queen (2011) 244 CLR 462 and McCloskey-Sharp v The Queen [2015] VSCA 87 applied – Leave granted but appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Dr M FitzGerald	Doogue & George Pty Ltd
For the Respondent	Mr C B Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

WHELAN AP
NIALL JA:

The applicant, George Ghannoum, committed a number of offences between 5 and 22 June 2017. He pleaded guilty to offences of obtaining property by deception, theft, attempting to obtain property by deception, and driving whilst his authorisation was suspended. He also pleaded guilty to two offences of armed robbery which he committed with two co-offenders, Saif Rashid and Abbas Allafta; and one offence of attempted armed robbery, which he committed with Allafta.

Allafta and Rashid also committed a number of other offences over approximately the same period, most relevantly other armed robberies and attempted armed robberies. Ghannoum, Allafta and Rashid all pleaded guilty to the relevant offences.

A plea hearing in relation to the applicant, Allafta and Rashid was held before a judge in the County Court on 25 September 2018. The plea in relation to Allafta was adjourned to enable further reports to be done. The judge sentenced the applicant and Rashid together on 29 October 2018.[1] Further plea hearings in relation to Allafta were held before the same judge on 9 November 2018 and 29 January 2019, and he was sentenced on 1 February 2019.[2]
[1][2018] VCC 1762 (‘Reasons’).
[2][2019] VCC 60 (‘Allafta Reasons’).

The applicant received a total effective sentence of 3 years’ imprisonment with a non-parole period of 18 months. Rashid was sentenced to a term of imprisonment of 12 months and a community correction order commencing at the end of that term of 2 years 6 months. Allafta was sentenced to a term of imprisonment of 1 year 11 months and a community correction order commencing at the end of that term of 2 years.

The applicant now seeks leave to appeal his sentence on two proposed grounds. The first is that the sentence imposed on him infringes the parity principle. In that respect he contends that his total sentence is excessively disparate from the total sentence imposed on Rashid and Allafta and gives rise to a justifiable sense of grievance. The second is that his total sentence and non-parole period, and…

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 Ghannoum v The Queen

Details

AGLC: Ghannoum v The Queen [2019] VSCA 25
Case: [2019] VSCA 25
Decision Date: 19 February 2019

CaseChat Overview and Summary

The appellant, Ghannoum, sought leave to appeal against his sentence imposed following his conviction for multiple armed robberies committed with two co-offenders. The primary contention was the perceived unjustifiable disparity in sentencing between the appellant and his co-offenders. The Court of Appeal was tasked with determining whether the trial judge's decision to differentiate the sentences was reasonably open and whether it adequately accounted for the unique circumstances of the co-offenders. Specifically, the court examined whether the co-offenders' conduct warranted a more severe sentence, given that one was a youthful first offender and the other had an unrecognised intellectual disability.

The legal issues centred on whether the disparity in sentencing was unjustifiable and whether the trial judge erred in not treating the co-offenders' mitigating factors more favourably. The appellant argued that the trial judge did not sufficiently differentiate his sentence from those of his co-offenders, despite their more serious conduct. The court had to consider the principles established in Green v The Queen (2011) 244 CLR 462 and McCloskey-Sharp v The Queen [2015] VSCA 87, which provide guidance on sentencing disparity and the recognition of mitigating factors such as youth and intellectual disability.

The Court of Appeal found that the trial judge's differentiation in sentence was reasonably open, taking into account the mitigating factors presented by the co-offenders. The court acknowledged the importance of recognising and addressing these factors but concluded that the overall sentence was not unjustifiable. The Court held that the trial judge had appropriately balanced the principles of proportionality and individual culpability. Consequently, the Court granted leave to appeal but dismissed the appeal on the grounds that the sentencing disparity was not unjustifiable under the circumstances.

Orders