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Haddara v The King

Haddara v The King

Case [2023] VSCA 250 24 October 2023

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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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JUDGE:	TAYLOR JA
WHERE HELD:	Melbourne
DATE OF HEARING:	3 October 2023
DATE OF JUDGMENT:	24 October 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 250
JUDGMENT APPEALED FROM:	DPP v Haddara (County Court of Victoria, Judge Wischusen, 17 March 2023)

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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

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CRIMINAL LAW – Application for leave to appeal – Sentence – Discharge firearm at premises – Sentence of 5 years 6 months’ imprisonment – Whether sentence manifestly excessive – Offender serving community correction order at time of offending – Offender had relevant criminal history – Prospects of rehabilitation guarded – Leave to appeal refused.

Firearms Act 1996, s 131A; Crimes Act 1958, s 31C.

Bruce v The Queen [2022] VSCA 100; Atkinson v The Queen [2021] VSCA 127; Diab v The King (No 2) [2023] VSCA 112, considered – DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428; Elias v The Queen (2013) 248 CLR 483, referred to.

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Counsel
Applicant:	Mr PJ Smallwood
Respondent:	Ms K Hamill
Solicitors
Applicant:	Milides Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TAYLOR JA:

Introduction and summary

On 17 March 2023, following a plea of guilty in the County Court to seven indictable charges and three summary charges, the applicant was sentenced as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Theft	10 years	6 months	1 month
2	Theft	10 years	9 months	1 month
3	Discharge firearm at premises	15 years	5 years and 6 months	Base
4	Prohibited person possess firearm	10 years or 1,200 penalty units	2 years	3 months
5	Handling stolen goods	15 years	1 month	N/A
6	Possess drug of dependence	1 year and 30 penalty units[1]	7 days	N/A
7	Possess drug of dependence	1 year and 30 penalty units	7 days	N/A
Related Summary Offences
20	Deal with property suspected of being proceeds of crime	2 years	1 month	N/A
27	Possess prohibited weapon	2 years or 240 penalty units	3 months	1 month
28	Possess Schedule 4 poison	10 penalty units	Convicted and discharged	N/A
Total Effective Sentence:		6 years
Non-Parole Period:		4 years and 3 months
Pre-sentence Detention Declared:		779 days
Section 6AAA Statement:		Total Effective Sentence 9 years Non Parole-Period 6 years 6 months
Other Relevant Orders: 1. Licences cancelled and disqualified from driving for 6 months. 2. Forfeiture orders.

[1]The maximum penalty for possessing a drug of dependence is 1 year and/or 30 penalty units if the court is satisfied, on the balance of probabilities, that the offence was not committed for any purpose related to trafficking in that drug of dependence. Otherwise, the penalty is 5 years’ imprisonment and/or 400 penalty units: Drugs, Poisons and Controlled Substances Act 1981, s 73(1). Charges 6 and 7 were…

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 [2023] VSCA 250
Case: [2023] VSCA 250
Decision Date: 24 October 2023

CaseChat Overview and Summary

The applicant in this case, Mr. Haddara, applied for leave to appeal against his sentence in relation to a firearms offence. Mr. Haddara was sentenced to five years and six months' imprisonment for discharging a firearm at premises, an offence under the Firearms Act 1996. The case was heard in the Victorian Court of Appeal. Mr. Haddara's contention was that the sentence imposed by the trial judge was manifestly excessive, given his personal circumstances and prospects for rehabilitation.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive. The court was required to consider various factors, including Mr. Haddara's criminal history, the nature and circumstances of the offence, and his prospects for rehabilitation. The applicant argued that his prospects for rehabilitation were not as poor as the trial judge had concluded and that the sentence should therefore be reduced. The Crown argued that the sentence was appropriate given the seriousness of the offence and the applicant's criminal history.

The court examined the principles established in previous cases, such as Bruce v The Queen and Atkinson v The Queen, which provide guidance on the assessment of manifestly excessive sentences. The court also considered the general principles established in Elias v The Queen and DPP v Dalgliesh, which emphasise the importance of proportionality and the need to balance the interests of the community with the individual circumstances of the offender. After careful consideration, the court concluded that the sentence was not manifestly excessive. The court found that the trial judge had appropriately considered all relevant factors, including the seriousness of the offence, the need for deterrence, and the applicant's criminal history. The court also noted that the applicant had relevant criminal history and that his prospects for rehabilitation were guarded. The court held that the sentence was proportionate to the offence and the offender's circumstances.

In light of the above, the court refused the applicant leave to appeal. The court held that the sentence imposed was not manifestly excessive and that there were no grounds for interfering with the trial judge's decision. The applicant's application for leave to appeal was therefore dismissed.

Orders