Hassan v The King - [2023] VSCA 251

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0099

ERDEN HASSAN	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 251
JUDGMENT APPEALED FROM:	DPP v Hassan [2023] VCC 632 (Judge McInerney)

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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 – Six charges of obtaining financial advantage by deception – Total effective sentence 2 years and 11 months’ imprisonment with non-parole period of 1 year and 8 months – Whether sentencing judge made errors of fact in sentencing – Whether sentence manifestly excessive – Leave to appeal refused.

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Counsel
Applicant:	Mr PA Chadwick KC
Respondent:	Ms K Hamill
Solicitors
Applicant:	Portfolio Law
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TAYLOR JA:

Introduction and summary

On 3 March 2023, following a trial of 16 days, a jury in the County Court convicted the applicant of six charges of obtaining financial advantage by deception.
Following a plea hearing on 5 April 2023, the applicant was sentenced on 10 May 2023 as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
4	Obtain financial advantage by deception	20 years (in virtue of Sentencing Act 1991, s 6I (‘Sentencing Act’))	2 years	1 month
5	Obtain financial advantage by deception	20 years (in virtue of Sentencing Act, s 6I)	2 years	1 month
6	Obtain financial advantage by deception	20 years (in virtue of Sentencing Act, s 6I)	2 years	1 month
8	Obtain financial advantage by deception	20 years (in virtue of Sentencing Act, s 6I)	2 years and 3 months	1 month
9	Obtain financial advantage by deception	20 years (in virtue of Sentencing Act, s 6I)	2 years and 3 months	1 month
10	Obtain financial advantage by deception	20 years (in virtue of Sentencing Act, s 6I)	2 years and 6 months	Base
Total Effective Sentence:		2 years and 11 months’ imprisonment
Non-Parole Period:		1 year and 8 months
Pre-sentence Detention Declared:		N/A
Section 6AAA Statement:		N/A
Other Relevant Orders: 1. Sentenced as a continuing criminal enterprise offender on each charge pursuant to s 6J(1) of the Sentencing Act.

The applicant seeks leave to appeal against sentence on the following grounds:
1.The learned sentencing judge erred by finding that the purchasers were vulnerable.
2. The learned sentencing judge erred by reaching a finding as to the motivation of the applicant.
3.The learned sentencing judge erred by reaching a finding that the purchase price was inflated.
4.The learned sentencing judge erred in his application of the parity principle by imposing a sentence that attached excessive weight to the sentencing of Akkala, Anand and Becker.
5.The individual sentences, orders for cumulation, total effective sentence and non-parole period are manifestly excessive in light of…

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 Hassan v The King

Details

AGLC: Hassan v The King [2023] VSCA 251
Case: [2023] VSCA 251
Decision Date: 24 October 2023

CaseChat Overview and Summary

The applicant, Hassan, was convicted on six counts of obtaining financial advantage by deception and was sentenced to a total effective term of imprisonment of 2 years and 11 months, with a non-parole period of 1 year and 8 months. He applied for leave to appeal against his sentence, arguing that the sentencing judge made errors of fact in assessing his culpability and that the sentence was manifestly excessive. The High Court of Australia was tasked with determining whether the applicant's arguments were sufficient to merit leave to appeal.

The central legal issue was whether the applicant's arguments, which primarily concerned alleged factual errors made by the sentencing judge and the excessiveness of the sentence, were strong enough to warrant leave to appeal. The court had to evaluate the applicant's claims regarding factual errors and the proportionality of the sentence imposed. The court also considered whether the applicant had demonstrated that the appeal had a real chance of success.

The court held that the applicant's arguments did not establish a sufficient case for leave to appeal. It found that the sentencing judge had adequately considered the relevant factors and had not made any significant errors of fact. Additionally, the court concluded that the sentence was not manifestly excessive, as it fell within the range of sentences that could be considered appropriate for the offences committed. Consequently, the court refused the applicant leave to appeal.

No further orders were made by the court.

Orders