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Haddara v The King

Haddara v The King

Case [2024] VSCA 269 14 November 2024

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0109

MOHAMMED HADDARA	Applicant
v
THE KING	Respondent

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JUDGES:	MACAULAY and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	11 September 2024
DATE OF JUDGMENT:	14 November 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 269
JUDGMENT APPEALED FROM:	DPP v Haddara (County Court of Victoria, Judge Wischusen, 17 March 2023)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Applicant convicted of multiple offences including one count of discharge firearm at premises – Shots fired at occupied residence with shotgun in early hours of morning, from stolen car – Total effective sentence of 6 years, non-parole period of 4 years 3 months – Base sentence of 5 years 6 months for discharge firearm at premises – Whether base sentence manifestly excessive – Current sentencing practice difficult to discern because offence relatively new – Serious criminal conduct – Prominence given to deterrence, denunciation and just punishment – Sentence within permissible range – Leave to appeal refused.

Firearms Act 1996, s 131A(1).

AB v The Queen (1999) 198 CLR 111; Atkinson v The Queen [2021] VSCA 127, considered.

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Counsel
Applicant:		Mr J O’Connor
Respondent:		Ms J Warren
Solicitors
Applicant:	Milides Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MACAULAY JA
KAYE JA:

Shortly before 2:30 am on 26 January 2021, two shots from a 12-gauge shotgun were fired from a stolen Toyota SUV that pulled into the driveway of residential premises in Jacana. Buckshot fired from the gun struck the house, some of the pellets piercing into the interior. The applicant was in the car and, only several hours beforehand, had exchanged text messages with one of the occupants of the house in which he described another occupant as ‘a dog’. After recovering the stolen Toyota SUV, police detected the applicant’s DNA in the vehicle and he was arrested.
These events, and others, ultimately led to the applicant pleading guilty to two charges of theft,[1] one charge of discharging a firearm at premises,[2] one charge of being a prohibited person in possession of a firearm,[3] one charge of handling stolen goods,[4] two charges of possessing a drug of dependence[5] and several related summary offences. On 17 March 2023, he was sentenced in the County Court to a total effective sentence of 6 years’ imprisonment and ordered to serve 4 years and 3 months’ imprisonment before being eligible for parole.[6] From that sentence the applicant seeks leave to appeal.
[1]Contrary to s 74 of the Crimes Act 1958.
[2]Contrary to s 131A(1) of the Firearms Act 1996.
[3]Contrary to s 5 of the Firearms Act 1996.
[4]Contrary to s 88 of the Crimes Act 1958.
[5]Contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981.
[6]DPP v Haddara (Unreported, County Court of Victoria, Judge Wischusen, 17 March 2023) (‘Sentencing Reasons’).
His sole proposed ground of appeal is that the sentence of 5 years and 6 months’…

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 Haddara v The King

Details

AGLC: Haddara v The King [2024] VSCA 269
Case: [2024] VSCA 269
Decision Date: 14 November 2024

CaseChat Overview and Summary

The applicant in this case, Haddara, was convicted of multiple offences, including one count of discharging a firearm at premises under the Firearms Act 1996. The incident involved shots being fired at an occupied residence in the early hours of the morning, using a shotgun fired from a stolen car. The primary dispute in this case was the severity of the sentence imposed by the trial court. Haddara was given a total effective sentence of six years, with a non-parole period of four years and three months. The base sentence for the offence of discharging a firearm at premises was set at five years and six months. Haddara sought leave to appeal against the sentence, arguing that the base sentence was manifestly excessive.

The court was tasked with determining whether the base sentence for the offence of discharging a firearm at premises was manifestly excessive, considering the seriousness of the conduct and the principles of sentencing. The court also had to consider the difficulty in discerning current sentencing practices for this relatively new offence, which required a balance between deterrence, denunciation, and just punishment. The court examined the total effective sentence and the non-parole period, assessing if it fell within the permissible range.

The court found that the base sentence for the offence was not manifestly excessive, as it was within the permissible range and appropriately balanced the principles of sentencing. The court held that the sentence imposed was appropriate given the serious nature of the offence and the need for deterrence and denunciation. The court also noted the prominence given to just punishment in sentencing for this type of offence. The court concluded that the sentence was appropriate and refused leave to appeal.

The final orders of the court were that leave to appeal was refused, and the original sentence imposed by the trial court was upheld. The court found that the sentence was not manifestly excessive and was within the permissible range, taking into account the seriousness of the offence and the principles of sentencing.

Orders