Jawad Qayyum v The King - [2025] VSCA 14

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0124

JAWAD QAYYUM	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON P and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 January 2025
DATE OF JUDGMENT:	20 February 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 14
JUDGMENT APPEALED FROM:	[2024] VCC 6262 (Judge Hogan)

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CRIMINAL LAW – Appeal – Attempt to pervert the course of justice – Family violence context – Applicant charged with family violence offences made telephone calls from prison instructing his brother to pressure his wife’s friend into making a statement in his favour and omitting any reference to him having arguments with his wife or beating her – Sentenced to 2 years’ imprisonment with a non-parole period of 1 year – Whether judge erred in sentencing the applicant on a factual basis different from that contained in the indictment which only referred to ‘arguments’ or prosecution opening which did not specifically refer to statement of wife’s friend – Whether failure of judge to notify applicant she would be sentencing him on an ‘aggravated factual basis’ denied him procedural fairness – Whether judge overstated objective gravity of offending – No error – Leave to appeal refused.

R v Formosa (2012) 36 VR 679, applied.

Baker (a pseudonym) v The Queen [2021] VSCA 158; Shiryar v The Queen [2022] VSCA 96;
R v Lowe [2009] VSCA 268; R v Healey (2008) 186 A Crim R 433; Fusca v The King [2024] VSCA 297, considered.

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Counsel
Applicant:		Mr J O’Connor
Respondent:		Mr J Dickie
Solicitors
Applicant:	C Marshall & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
J FORREST AJA:

Jawad Qayyum, the applicant, pleaded guilty in the County Court to attempting to pervert the course of justice (the subject offence). On 10 May 2024, her Honour Judge Hogan sentenced the applicant to 2 years’ imprisonment with a non-parole period of 1 year. He now seeks leave to appeal that sentence.
The applicant faced trial on a series of family violence offences committed against his wife, HB, set down for hearing in the Sunshine Magistrates’ Court in May 2021.
Whilst on remand for those charges in February 2021, the applicant made multiple telephone calls to his brother, Bilal, which form the basis for the subject offence. The underlying theme of the calls was the applicant’s instructions to his brother to pressure a potential witness, FM, a friend of the applicant’s wife, to provide a false account to police of the applicant’s relationship with his wife and his wife’s mental state.
Bilal, in accordance with the applicant’s instructions, made a series of phone calls and sent multiple text messages to FM — all designed to persuade her to give a false version of the applicant’s relationship with HB.
FM made a statement to police in March 2021 which described both the relationship between the applicant and HB as well as Bilal’s attempts to pressure her into altering her version…

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.

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Details

Case: [2025] VSCA 14
Decision Date: 20 February 2025

CaseChat Overview and Summary

Jawad Qayyum appealed against his conviction for attempting to pervert the course of justice, arguing that the trial judge erred in sentencing him based on facts not included in the indictment. Qayyum, charged with family violence offences, made calls from prison to his brother, directing him to persuade a friend of his wife to give a statement favourable to him, omitting any mention of his arguments or violence towards his wife. He was sentenced to two years imprisonment with a non-parole period of one year. Qayyum contended that the judge erred in sentencing on a factual basis different from the indictment, which only referred to "arguments," and that the judge failed to notify him that she would be sentencing him on an aggravated factual basis, thereby denying him procedural fairness. Additionally, he argued that the judge overstated the objective gravity of the offending. The court considered these arguments in light of the authorities, ultimately finding no error in the trial judge's approach.

The legal issues revolved around whether the trial judge's sentencing was based on a factual basis different from that alleged in the indictment, and whether this constituted a failure of procedural fairness. The court also examined whether the judge overstated the gravity of the offending. These issues were considered against the backdrop of established case law, which underscores the importance of ensuring that sentencing is based on facts that are adequately pleaded and brought to the attention of the defendant. The appeal hinged on whether the trial judge's actions conformed to these legal principles.

In examining these issues, the court found that the trial judge did not err in sentencing Qayyum based on the facts of the case. The judge was entitled to consider the full context of the offending, including the nature and circumstances of the attempts to pervert the course of justice. The court also held that there was no requirement for the judge to specifically notify Qayyum of her intention to sentence on an aggravated factual basis, given that the additional facts were inherently connected to the original charge. Furthermore, the court determined that the judge's assessment of the objective gravity of the offending was within an acceptable range. The appeal was therefore dismissed, and leave to appeal was refused.

No further orders were made in light of the dismissal of the appeal. The court's decision underscored the importance of judicial discretion in sentencing and the principle that a trial judge can consider a broader factual basis when determining the appropriate penalty.

Orders