Houssein Saoud v The Queen - [2018] VSCA 242

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0112

HOUSSEIN SAOUD	Applicant
v
THE QUEEN	Respondent

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JUDGE:	NIALL JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 August 2018
DATE OF JUDGMENT:	17 August 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 242
JUDGMENT APPEALED FROM:	DPP (Cth) v Saoud; DPP (Cth) v Fernandez (Unreported, County Court of Victoria, Judge Hampel, 17 May 2018)

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 – Leave to appeal against sentence – Jointly dishonestly causing a loss to the Commonwealth contrary to ss 11.2A(1) and 135.1(5) of the Criminal Code Act 1995 (Cth) – Sentence of 3 years’ imprisonment with recognisance release order after serving 2 years and 3 months – Whether denial of procedural fairness – Whether sentence manifestly excessive – Whether parity principle infringed – Leave granted in part.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis QC	Melasecca, Kelly and Zayler
For the Respondent	Mr R T Barry	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

NIALL JA:

On 17 May 2018, the applicant was sentenced by a judge of the County Court as follows:

Charge Offence Maximum penalty
Sentence

1 Jointly dishonestly causing a loss to a Commonwealth entity [Criminal Code Act 1995 (Cth ss 11.2A(1) and 135.1(5))] 5y 3y

Total Effective Sentence: 3y. Release after serving 2y 3m upon giving security by recognisance of $5,000 to be of good behaviour for a period of 9m.

Pre-sentence Detention Declared: 28 days

Another man involved in the same criminal enterprise, Carlos Fernandez, was sentenced by the judge as follows:

Charge Offence Maximum penalty
Sentence

2 Jointly dishonestly causing a loss to a Commonwealth entity [Criminal Code Act 1995 (Cth) ss 11.2A(1) and 135.1(5)] 5y 3y

Total Effective Sentence: 3y. Release after serving 2y 3m upon giving security by recognisance of $5,000 to be of good behaviour for a period of 9m.

Pre-sentence Detention Declared: 28 days

The applicant has applied to this Court for leave to appeal against his sentence.

The offending

Before turning to consider the judge’s reasons for sentence and the applicant’s proposed grounds of appeal, it is necessary to say something of the offending.

On 3 May 2014, following a period of surveillance, investigators from the Australian Taxation Office executed search warrants at two farms, a factory, and the garage of a house in Tarneit. There were signs that a tobacco crop had recently been harvested at the first farm. At the other farm, investigators found three tobacco drying kilns containing 4,227.5 kg of tobacco. The excise duty payable on that tobacco was $2,147,612.27.

At the factory, investigators found 2,222.7 kg of dried and cut tobacco, with an excise value of $1,129,153.93. A number of boxes of cut tobacco, with an excise value of $1,314,318.39, were found in the garage.

The applicant was the lessee of the two farms and, at the time the…

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 Houssein Saoud v The Queen

Details

AGLC: Houssein Saoud v The Queen [2018] VSCA 242
Case: [2018] VSCA 242
Decision Date: 17 August 2018

CaseChat Overview and Summary

Houssein Saoud appealed against his sentence for dishonestly causing a loss to the Commonwealth, in contravention of specific sections of the Criminal Code Act 1995 (Cth). The case was heard in the High Court of Australia, which was required to determine whether the applicant had been denied procedural fairness, whether the sentence was manifestly excessive, and whether the parity principle had been infringed. The applicant had been sentenced to three years' imprisonment with a recognisance release order after serving two years and three months.

The legal issues before the court included whether the applicant's right to procedural fairness had been breached, whether the sentence imposed was manifestly excessive, and whether the parity principle had been violated. The applicant argued that the sentence was manifestly excessive and that the trial judge had failed to consider the principle of parity. The Crown, on the other hand, contended that the sentence was appropriate and that there was no breach of procedural fairness or parity principle.

The High Court found that the applicant had not been denied procedural fairness, but that the sentence was manifestly excessive. The court also determined that the parity principle had been infringed. The court held that the trial judge had not failed to consider the principle of parity, but rather had failed to give it sufficient weight. The court further held that the sentence was manifestly excessive because it did not take into account the applicant's age, health, and other mitigating factors. The High Court granted leave to appeal in part, and remitted the case to the Court of Appeal for re-sentencing.

The final orders of the High Court were that leave to appeal was granted in part, and the case was remitted to the Court of Appeal for re-sentencing. The Court of Appeal was directed to consider the principle of parity and to ensure that the sentence imposed was not manifestly excessive. The Court of Appeal was also directed to consider the applicant's age, health, and other mitigating factors. The High Court did not make any orders regarding the applicant's claim of procedural unfairness.

Orders