Kassab v The Queen - [2016] VSCA 327

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0144

MOHAMMED KASSAB

THE QUEEN

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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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JUDGE:	SANTAMARIA JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 November 2016
DATE OF JUDGMENT:	16 December 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 327
JUDGMENT APPEALED FROM:	DPP v Kassab (Unreported, County Court of Victoria, Judge Allen, 1 July 2016)

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APPEARANCES:	Counsel	Solicitors
For the applicant	Mr R F Edney	Sarah Tricario Lawyers Pty Ltd
For the respondent	Ms D Piekusis	Mr J Cain, Solicitor for Public Prosecutions

SANTAMARIA JA:

On 7 November 2013, the applicant was sentenced in relation to a charge of false imprisonment that had taken place in September 2010 (‘indictment A12554237’). On that occasion, he was sentenced to a community correction order (‘CCO’). Pursuant to that order, he was required to perform 250 hours of unpaid community work over two years; to undergo supervision for three years and to undergo assessment and treatment; and to undergo judicial monitoring.

On 1 July 2016, after a plea of guilty, the applicant was convicted of two charges of threat to inflict serious injury contrary to s 21 of the Crimes Act 1958 (‘Crimes Act’), one charge of causing injury intentionally contrary to s 18 of the Crimes Act, one charge of theft of a motor vehicle contrary to s 72 of the Crimes Act, one charge of threat to damage property contrary to s 198 of the Crimes Act, one charge of common assault and one charge of false imprisonment (‘indictment D13739206’). The relevant offending occurred between 20 November 2013 and 5 December 2103.[1]
[1]DPP v Kassab (Unreported, County Court of Victoria, Judge Allen, 1 July 2016) (‘Sentencing Remarks’).

In addition, upon pleading guilty to a breach of the CCO, he was resentenced in respect of the charges on indictment A12554237.

The applicant was sentenced as follows:

Charge on indictment

D13739206
Offence Maximum Sentence Cumulation

1 Threat to inflict serious injury contrary to s 21 of the Crimes Act 1958 (‘Crimes Act’). 5 y 3 m 1 m

2 Intentionally causing injury, contrary to s 18 of the Crimes Act. 10 y 3 m 1 m

3 Theft of motor vehicle, contrary to s 72 of the Crimes Act. 10 y 12 m 6 m

4 Threat to damage property, contrary to s 198 of the Crimes Act. 5 y 2 m 1 m

5 Common assault contrary to the common law. 5 y 2 m -

6 Threat to inflict serious injury contrary to s 21 of the Crimes Act. 5 y 3 m -

7 False imprisonment contrary to the common law. 10 y 12 m Base

Charge on Indictment A12554237

1 Contravention of CCO, contrary to s 83AD of the Sentencing Act 1991. Order cancelled and re-sentenced.

2 False imprisonment contrary…

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 Kassab v The Queen

Details

AGLC: Kassab v The Queen [2016] VSCA 327
Case: [2016] VSCA 327
Decision Date: 16 December 2016

CaseChat Overview and Summary

The applicant, Mohammed Kassab, appealed against the sentence imposed by the County Court of Victoria. The applicant was convicted of multiple charges including threats to inflict serious injury, causing injury intentionally, theft of a motor vehicle, threat to damage property, common assault, and false imprisonment. The court had to decide whether the individual sentences, the total effective sentence, the non-parole period, and the duration of the community correction order (CCO) were manifestly excessive. Additionally, the court had to determine whether the resentence for the offence of false imprisonment arising from the breach of the CCO was manifestly excessive in itself and in regard to its cumulation with the sentence imposed for the other offences.

The applicant argued that the sentences were manifestly excessive, taking into account various mitigating factors such as his guilty plea, the lack of relevant prior convictions, the context of the theft of the motor vehicle as being in the pursuit of an inflated debt, and the delay between the offending and the imposition of the sentence. The respondent contended that the sentences were within the appropriate range, considering the seriousness of the offences and the fact that the applicant had breached a CCO imposed on him previously. The court found that the individual sentences and the orders for cumulation were not manifestly excessive, considering the maximum penalties for each offence, the escalation of the seriousness of the offending, and the fact that the offending occurred within weeks of the applicant being placed on a CCO. However, the court noted a discrepancy in the formal record of orders regarding the pre-sentence detention and ordered that the formal order of the County Court be amended accordingly.

Orders