JUDGES:	MAXWELL P, NEAVE and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 August 2014
DATE OF JUDGMENT:	26 August 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 187
JUDGMENT APPEALED FROM:	DPP v Hanna & Ors (Unreported, County Court of Victoria, Judge Hampel, Conviction – 19 March 2013; Sentence – 24 May 2013)

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CRIMINAL LAW – Appeal – Conviction – Kidnapping, false imprisonment and intentionally causing injury – Jury directions – Whether directions about ‘background’ or ‘context’ invited propensity or tendency reasoning by jurors – No substantial miscarriage of justice – Leave to appeal refused.

CRIMINAL LAW – Appeal – Conviction – Leave to appeal – Jury – Apprehended bias – Whether juror overheard accused at café – Whether judge investigated adequately – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Kidnapping, false imprisonment and intentionally causing injury –Total effective sentence nine years and six months’ imprisonment, non-parole period seven years – Whether manifestly excessive – Parity – Whether identical sentences adequately reflected youth and rehabilitation of younger applicants – Procedural fairness – Psychologist’s report – Judge’s assessment of applicant more favourable than report – Whether finding reasonably anticipated – Younger applicants re-sentenced – Eight years’ imprisonment, non-parole period five years and six months.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Mike Hanna	Mr N Papas QC	Garde-Wilson Lawyers
For the Applicants Mohamed Mohamed and Ahmed Mohamed	Mr T Kassimatis	Theo Magazis & Associates
For the Crown	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

I have had the advantage of reading in draft the reasons for judgment of Priest JA. I agree with the orders which his Honour proposes, for the reasons which he gives.

NEAVE JA:

I have had the advantage of reading the draft reasons of Priest JA. I agree with the orders he proposes for the reasons he gives.

PRIEST JA:

Introduction

Following a trial in the County Court, on 19 March 2013 a jury found the applicants, Mike Hanna (now aged 33), Mohamed Mohamed and Ahmed Mohamed (twin brothers, both now aged 26) guilty of kidnapping, false imprisonment and intentionally causing injury. They were acquitted of an alternative charge of intentionally causing serious injury.

On 24 May 2013, the trial judge sentenced all three applicants to be imprisoned for nine (9) years and six (6) months, with a non-parole period of seven (7) years, in accordance with the following table:

Charge

Offence

Verdict

Sentence

Cumulation

1

Kidnapping[1]

Guilty

7 years

Base

2

False imprisonment[2]

Guilty

3 years

1 year

3

Intentionally cause serious injury

Not Guilty

—

—

Alternative to charge 3

Intentionally cause injury[3]

Guilty

4 years

1 year and 6 months

Alternative to charge 3

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 Hanna v The Queen

Details

AGLC: Hanna v The Queen [2014] VSCA 187
Case: [2014] VSCA 187
Decision Date: 26 August 2014

CaseChat Overview and Summary

In Hanna v The Queen, the appellant sought leave to appeal against his conviction for kidnapping, false imprisonment and intentionally causing injury, as well as his sentence. The appeal was heard by the High Court of Australia. The appellant argued that the trial judge's directions to the jury regarding the 'background' or 'context' of the case invited them to engage in improper propensity or tendency reasoning, and that there was an apprehended bias due to a juror overhearing the appellant at a café. The appellant also argued that his sentence was manifestly excessive and did not adequately reflect his youth and potential for rehabilitation.

The legal issues before the court were whether the jury directions invited improper reasoning, whether the judge adequately investigated the apprehended bias, and whether the sentence was manifestly excessive. The court found that the jury directions did not invite improper reasoning, and that the judge had adequately investigated the apprehended bias. The court also found that the sentence, while lengthy, was not manifestly excessive, and that the appellant's youth and potential for rehabilitation had been adequately taken into account.

The court's reasoning was that the jury directions were not ambiguous or misleading, and that the judge had taken all reasonable steps to investigate the apprehended bias. The court also found that the appellant's sentence, while lengthy, was not manifestly excessive, and that the appellant's youth and potential for rehabilitation had been adequately taken into account. The court noted that the appellant's co-offenders had been re-sentenced to eight years' imprisonment, with a non-parole period of five years and six months, and that this sentence adequately reflected the appellant's youth and potential for rehabilitation.

The court refused leave to appeal, and made no orders regarding the sentence.

Orders