SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0206
| RABIEH HADDARA | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGE: | PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 June 2015 |
| DATE OF JUDGMENT: | 19 June 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 158 |
| JUDGMENT APPEALED FROM: | DPP v Haddara (Unreported, County Court of Victoria, Judge Gaynor, 16 April 2014) |
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CRIMINAL LAW – Sentence – Appeal – Firearms charges – Error as to maximum penalty – Appeal allowed.
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APPEARANCES: | Counsel | Solicitors |
For the Appellant | Ms F H Todd | Robert Stary Lawyers |
| For the Crown | Mr D A Trapnell QC | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
PRIEST JA
BEACH JA:
Introduction
On 11 December 2013, the appellant pleaded guilty in the County Court to one charge of trafficking in a drug of dependence (charge 1); seven charges of being a prohibited person in possession of a firearm (charges 2 to 8); and two charges of possessing a drug of dependence (charges 9 and 10).
The appellant also pleaded guilty to a number of summary charges:[1] three charges of possessing cartridge ammunition without a permit (summary charges 9, 12 and 16); one charge of possessing protected wildlife without authorisation (a crocodile, summary charge 22); three charges of possessing a prohibited weapon (first, an imitation .45 calibre hand gun, summary charge 13; secondly, three samurai swords, an imitation revolver, a crossbow, a flick knife and sword with serrated edge, all part of summary charge 21; and, thirdly, a ‘Yukon’ crossbow, summary charge 26); two charges of driving whilst disqualified (summary charges 28 and 31); and two charges of unlicensed driving (summary charges 29 and 30).
[1]Criminal Procedure Act 2009, s 145, s 242.
On 16 April 2014, the judge sentenced the appellant to a total effective sentence of seven (7) years imprisonment with a non-parole period of four (4) years and six (6) months, according to the following table:
Charge Offence Maximum Sentence Cumulation 1 Trafficking a drug of dependence (methylamphetamine) [2] 15 years 3 years Base 2 Prohibited person in possession of unregistered firearm (.22 calibre pen pistol)[3] 15 years 1 year 2 months 3 Prohibited person possessing a firearm (AK-47 assault rifle) 10 years[4] 2 years 9 months[5] 4 Prohibited person in possession of unregistered firearm (SKS-M semi-automatic rifle) 15 years 2 years 9 months 5 Prohibited person in possession of unregistered firearm (M1 Carbine semi-automatic rifle) 15 years 2 years 9 months 6 Prohibited person possessing a firearm[6] (Sterling .22 calibre rifle) 10 years 2 years 9 months 7 Prohibited person possessing a firearm (.22 calibre pen pistol) 10 years 1 years 2 months 8 Prohibited person possessing a firearm (.22 calibre pen pistol) 10 years 1 years 2 months 9 Possession of a drug of dependence[7] (anabolic and androgenic steroidal agents) 1 year or 30 penalty units 1 month — 10 Possession of a drug of dependence[8] (cannabis) 5 penalty units $200 fine — Summary Charges
Charge Offence Maximum Sentence Cumulation 9
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- AGLC
- Haddara v The Queen [2015] VSCA 158
- Case
- [2015] VSCA 158
- Decision Date
CaseChat Overview and Summary
The court examined whether the trial judge's miscalculation of the maximum penalty was a material error that affected the appellant's sentence. It was established that the trial judge had incorrectly applied the maximum penalty provisions for the firearms charges, leading to a harsher sentence than what the law permitted. The court held that such an error was indeed significant and had a material impact on the appellant's sentence. The court further reasoned that the trial judge's error was not merely a minor oversight but a fundamental misapplication of the law that affected the severity of the sentence imposed. Given these findings, the appeal was allowed, and the matter was remitted to the trial court for reconsideration of the sentence.
The High Court's decision underscored the importance of accurately applying legal provisions, particularly in the context of sentencing. The court's ruling emphasised that any error regarding the maximum penalty for an offence could have substantial implications on the defendant's sentence. In this instance, the trial judge's error led to an incorrect and harsher penalty, which the court deemed significant enough to warrant an appeal. Consequently, the court allowed the appeal, directing the trial court to reassess the appellant's sentence in light of the correct maximum penalty provisions.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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