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House v The Queen

House v The Queen

Case [2021] VSCA 319 19 November 2021

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0105

QASIM HOUSE	Applicant
v
THE QUEEN	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	19 November 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 319
JUDGMENT APPEALED FROM:	[2021] VSC 419 (Taylor J)

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CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Attempted aggravated carjacking, prohibited person possess firearm, reckless conduct endangering persons, theft, handle stolen goods – TES of 6 years and 3 months, with NPP of 3 years and 9 months – Manifest excess – Whether reasonably arguable that sentence of 5 years for attempted aggravated carjacking manifestly excessive – Whether reasonably arguable that TES and/or NPP manifestly excessive – Complaints of manifest excess not reasonably arguable – Application for leave to appeal refused.

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REPRESENTATION:	Counsel	Solicitors
For the Applicant	Mr J O’Connor	Gallant Law
For the Respondent	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA:

On 15 April 2019, the applicant pleaded guilty in the Supreme Court to one charge of attempted aggravated carjacking, one charge of being a prohibited person in possession of a firearm, one charge of recklessly engaging in conduct placing persons in danger, one charge of theft and one charge of handling stolen goods. On 16 July 2021, he was sentenced as follows.

Charge Offence Maximum Sentence Cumulation

1 Attempted aggravated carjacking (Crimes Act 1958 s 79A; s 321M) 20 years 5 years Base

2 Prohibited person possess firearm (Firearms Act 1996 s 5(1)) 10 years 3 years 3 months

3 Reckless conduct endangering persons (Crimes Act 1958 s 23) 5 years 2 years 6 months

4 Theft (Crimes Act 1958 s 74(1)) 10 years 3 years 6 months

5 Handle stolen goods (Crimes Act 1958 s 88(1)) 15 years 6 months Nil

Total Effective Sentence: 6 years and 3 months

Non-Parole Period 3 years and 9 months

Pre-sentence detention declared 1331 days

6AAA Statement: 8 years and 3 months, with a non-parole period of 5 years.

The applicant now seeks leave to appeal on the sole ground that the sentence imposed on charge 1, the total effective sentence and the non-parole period are all manifestly excessive.

Circumstances of the offending

On 23 November 2017, the applicant had been at the home of Yen Ngo. Ms Ngo was involved in the business of drug trafficking. The applicant had been in a sometimes intimate relationship with her for a few months. He also bought illicit drugs from her.

On that day the applicant had with him a firearm, a sawn-off shotgun in very ill repair. It lacked a trigger guard and both the barrel and the butt had been shortened. It was loaded. The applicant was prohibited from possessing a firearm because less than five years had passed since he had completed a term of imprisonment for an indictable offence. He had possession of the firearm for ‘protection’ given…

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 House v The Queen

Details

AGLC: House v The Queen [2021] VSCA 319
Case: [2021] VSCA 319
Decision Date: 19 November 2021

CaseChat Overview and Summary

In the case of House v The Queen, the applicant sought leave to appeal against the sentence imposed upon him following a series of criminal convictions. The applicant was found guilty of multiple charges, including attempted aggravated carjacking, possession of a firearm by a prohibited person, reckless conduct endangering persons, theft, and handling stolen goods. The Supreme Court of Victoria handed down a total effective sentence (TES) of 6 years and 3 months, with a non-parole period (NPP) of 3 years and 9 months. The applicant contested the severity of the sentence, arguing that it was manifestly excessive.

The primary legal issues before the court were whether the applicant had a reasonably arguable case that the sentence imposed for the attempted aggravated carjacking was manifestly excessive, and whether the TES and/or NPP were manifestly excessive. The court examined the principles of sentencing and the principle of totality, which requires that the cumulative sentence not be disproportionate to the overall criminality of the offending. The applicant argued that a five-year sentence for the attempted aggravated carjacking was manifestly excessive, and that the overall sentence and non-parole period were also disproportionate.

The court concluded that the applicant's complaints of manifest excess were not reasonably arguable. It found that the sentence for the attempted aggravated carjacking, while severe, was not manifestly excessive given the nature and circumstances of the offence. The court also considered the totality principle and determined that the overall sentence and non-parole period were not manifestly excessive. Consequently, the application for leave to appeal was refused.

There were no further orders made by the court beyond the refusal of leave to appeal against the sentence.

Orders