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Jomaa v The Queen

Jomaa v The Queen

Case [2014] VSCA 103 30 May 2014

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0163
KHALED JOMAA	Applicant
v
THE QUEEN	Respondent

JUDGES:	WEINBERG and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 May 2014
DATE OF JUDGMENT:	30 May 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 103
JUDGMENT APPEALED FROM:	DPP v Jomaa (Unreported, County Court of Victoria, Judge Parsons, 6 August 2013)

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CRIMINAL LAW – Application for leave to appeal against sentence – Applicant pleaded guilty to six counts of burglary and ten counts of theft and a summary offence of driving in a dangerous manner – Applicant and co-offender committed offences as part of multi-faceted course of criminal conduct – Sentenced to six years and nine months’ imprisonment with a non-parole period of five years – Manifest excess – Whether sentencing judge gave insufficient weight to mitigating factors – Sentences clearly within range of sentences that were reasonably open – Cumulation – No error in treating dangerous driving as a distinct offence – Parity – Lesser non-parole period of co-offender – Co-offender committed offences while on parole for Commonwealth offences – Revocation of parole period – Principle of totality applied by judge to co-offender – Co-offender must serve longer period before eligibility for parole – No justifiable sense of grievance – Application for leave to appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms N Karapanagiotidis	Revill & Papa Lawyers
For the Respondent	Mr G J C Silbert QC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

I agree with Santamaria JA.

SANTAMARIA JA:

The applicant, Khaled Jomaa, pleaded guilty, in the County Court at Melbourne, to six counts of burglary, ten counts of theft, and a single summary offence of driving in a dangerous manner. On 6 August 2013, he was sentenced as follows:[1]

Charges on Indictment

Offence

Maximum

Sentence

Cumulation

1.

Burglary

[s 76(1) Crimes Act 1958]

10 years

[s 76(3) Crimes Act 1958]

18 months

Base Sentence

2.

Theft

[s 74(1) Crimes Act 1958]

10 years

[s 74(1) Crimes Act 1958]

12 months

2 months

3.

Burglary

[s 76(1) Crimes Act 1958]

10 years

[s 76(3) Crimes Act 1958]

18 months

9 months

4.

Theft

[s 74(1) Crimes Act 1958]

10 years

[s 74(1) Crimes Act 1958]

9 months

2 months

5.

Theft

[s 74(1) Crimes Act 1958]

10 years

[s 74(1) Crimes Act 1958]

Fined $500

–

6.

Burglary

[s 76(1) Crimes Act 1958]

10 years

[s 76(3) Crimes Act 1958]

18 months

9 months

7.

Theft

[s 74(1) Crimes Act 1958]

10 years

[s 74(1) Crimes Act 1958]

12 months

2 months

8.

Theft

[s 74(1) Crimes Act 1958]

10 years

[s 74(1) Crimes Act 1958]

Fined $500

9.

Burglary

[s 76(1) Crimes Act 1958]

10 years

[s 76(3) Crimes Act 1958]

18 months

9 months

10.

Theft

[s 74(1) Crimes Act 1958]

10 years

[s 74(1) Crimes Act 1958]

12 months

2…

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 Jomaa v The Queen

Details

AGLC: Jomaa v The Queen [2014] VSCA 103
Case: [2014] VSCA 103
Decision Date: 30 May 2014

CaseChat Overview and Summary

The applicant, Jomaa, sought leave to appeal against the sentence imposed following a guilty plea to multiple charges of burglary, theft, and dangerous driving. The case was heard in the High Court of Australia. The crux of the appeal was the perceived manifest excess of the sentence, arguing that the sentencing judge did not adequately consider the mitigating circumstances presented by Jomaa. Additionally, the applicant contested the cumulative sentencing approach and the parity between his sentence and that of his co-offender.

The court addressed whether the sentencing judge appropriately balanced the aggravating and mitigating factors in determining the sentence. It examined the principle of totality applied to the co-offender's sentence and the effect of the co-offender's parole status on his sentencing. The court found that the sentence imposed was well within the range of sentences that could be reasonably applied, considering the nature and circumstances of the offences. The court also upheld the decision to treat the dangerous driving offence as distinct, and it affirmed the principle of parity, ensuring that the co-offender, who was on parole for Commonwealth offences, had a longer non-parole period, reflecting the principle of totality.

The High Court concluded that the sentencing judge had applied the appropriate legal principles in crafting the sentences. The court found no error in the approach taken, and the application for leave to appeal was dismissed. The reasoning provided by the sentencing judge was deemed sufficient, and no manifest excess was identified in the sentence imposed on Jomaa. The court also confirmed that the co-offender's longer non-parole period was justified, and the overall sentences reflected a fair and balanced outcome.

Orders