Kassab v The Queen
[2016] VSCA 327
•16 December 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0144
| MOHAMMED KASSAB |
| v |
| 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 to the common law. 10 y 6 m 2 m Total effective sentence for indictment D13739206 1 y 9 m
2 y CCO
Total effective sentence for indictment A12554237
6 m Total effective sentence for both indictments 1 y 11 m
2 y CCO
Non-parole period - Pre-sentence detention declared D13739206 121 days Pre-sentence detention declared A12554237 Section 6AAA statement: 4 years and 6 months’ imprisonment with a non‑parole period of 3 years.
The applicant now appeals against sentence on the following grounds:
1.The individual sentences, total effective sentence, non-parole period and duration of [the] [CCO] are manifestly excessive.
2.The resentence for the offence of false imprisonment arising from the breach of the [CCO] is manifestly excessive in itself and manifestly excessive in regard to its cumulation upon the sentence imposed for the further offences.
Circumstances of the offending
The offences occurred between 20 November and 5 December 2013. The offending was against two brothers, AR and MR. The applicant and AR have known each other for about ten years. MR knew the applicant as a result of his brother’s contact with him.
AR gave evidence that in September 2013, some items were stolen from an associate’s house. The offending was said to have resulted from this, and an unpaid debt owed by AR to the applicant. AR denied any involvement in the theft.
Charges against AR
On or about 20 November 2013, the applicant attempted to telephone AR, but AR did not answer.
AR decided to visit the applicant at his home to tell him that he had not been involved in the break in.
When AR arrived at the applicant’s home, he pressed the intercom at the gate. A remote control gate secured the applicant’s house, in part, with a number of security cameras around the house. The applicant and AR spoke and the applicant unlocked the gate, permitting AR to enter the driveway and meet the applicant at the back of the house. The applicant and AR then went inside and sat on a couch. They then began to discuss the alleged break in. The applicant believed that, as AR had keys to the house, he was responsible for the break in. AR again denied any involvement. During the course of this argument, the applicant said words to the effect that AR was a ‘fucking dog’ and that if he denied his involvement one more time he ‘would put one in him’ (charge 1 - threat to inflict serious injury).
As AR and the applicant continued to argue, the applicant said that AR owed him $4 000. The applicant demanded that AR hand over his car keys, but AR refused to do so. The applicant then seized a baseball bat and hit AR with it just below the knee, causing AR to fall on the floor. AR suffered pain, bruising and a lump on his leg (charge 2 - intentionally causing serious injury).
The applicant then told AR to ‘get the fuck up and get out’. They walked to out of the house to the front gate. After further argument, the applicant agreed that AR could keep the car but he demanded that AR pay him $10 000 by 6 pm the following day.
At about 6 pm on the following day, AR telephoned the applicant and said that he did not have the money as demanded. The applicant then told him he had until 11 pm, and should come to his house at that time with the money.
At about 10.45 pm that day, AR went to the applicant’s house. After some discussion, the applicant demanded the keys to the car. The applicant made a number of threats to AR, including that the amount of money owed was $35 000, that it would go up to $50 000 the following Friday and that it would increase by a further $50 000 each Friday thereafter.
In the context of these threats and intimidation, AR handed over the keys to his car. The applicant allowed AR to retrieve his cigarettes from the car, reminding him about the increased amounts of money he owed him. The applicant demanded the transfer papers for the car, but AR said that the car was in his mother's name (charge 3 - theft). This charge was put by the prosecution as the nature of the threats, the timing of the demand to sign the papers, and the escalation of the repayment amounts to $50 000 demonstrate that the original debt, which AR said to be around $2 000, was not the basis for keeping the car.
AR was then driven home by a friend.
The following day, the applicant telephoned AR and asked where the transfer papers were. AR told the applicant that he would have to convince his mother to sign the papers, as the car was in her name and she had lent him money to purchase the car which he had not yet paid back. The accused said he wanted the papers that day.
Later that day, the applicant again contacted AR and demanded the papers. AR told the applicant that his mother had refused to sign the transfer papers. The applicant then told AR that he would burn the car if he was not given the transfer papers (charge 4 - threat to destroy property).
Conduct relating to MR
On or about 27 or 28 November 2013, MR was at home with his 12 year old daughter. During the afternoon, the applicant knocked on the front door. MR’s daughter answered the door and called MR to the door. The applicant then began ‘berating’ MR about the money that AR owed the applicant. The applicant told MR to tell his brother that, if the money were not paid to him, the debt would rise to $50 000.
The following day, the applicant met MR at a fast food outlet. During the meeting, the applicant handed MR some blank transfer papers, which he said he wanted signed immediately. He made a number of threats to MR regarding his brother.
The next day, the applicant and an unknown associate arrived at MR’s home. The applicant asked for the transfer papers, but MR said he had been working and hadn’t had time to get them signed. After a further argument, during which the applicant became agitated and angry, the applicant and his associate left the premises.
That night, AR and MR had a discussion, during which MR said that he would incorrectly fill out the papers.
MR then filled out the transfer form, but using incorrect numbers for the licence number of his mother. Arrangements were made for the transfer papers to be handed over later that afternoon. Once the transfer papers were handed over, MR received a telephone call from the applicant, who had discovered that the car had been reported stolen. The applicant told MR that the car needed to be ‘unreported’.
The next day (30 November 2013), the applicant and his associate again attended MR’s house and told MR that they were taking him to his mother’s house to find out about the car. MR said that his mother had gone out for dinner. MR refused to go with the applicant.
About a week later, on 5 December 2013, the applicant returned to MR’s house with his associate. The applicant approached MR, who was getting into his car with his daughter to go to the supermarket, and punched him in the face (the first act constituting charge 5 - common law assault).
The applicant then told MR he was coming with him until he received some money, telling his associate words to the effect of ‘I'm going to cap this prick’ (the first act constituting charge 6 - threatening to inflict serious injury).
Around this time, MR’s elder daughter arrived at the house and the two girls went inside. When MR attempted to go inside to calm his daughters down, the applicant punched MR in the head (the second act constituting charge 5 - common law assault).
As the three men left MR’s property, the applicant told MR that if he tried to escape the applicant would shoot him (the second act constituting charge 6 - threatening to inflict serious injury).
The three men then got into a vehicle and drove to MR’s mother’s house (charge 7 - false imprisonment). During the course of this trip, the applicant told MR that he was going to ‘cap’ him and that if he did not receive the money by the next day that he would ‘lift the place’.
During this time, MR’s daughters had contacted police, who were waiting at MR’s house when the applicant and MR returned in the vehicle.
Ground 1 — Manifest excess
Applicant’s submissions
In his written submissions, the applicant submits that, given the offending in Indictment D13739206, the sentences of imprisonment and CCO in regard to all the charges are manifestly excessive. Furthermore, if the period of imprisonment imposed on charge 3 and 7 is manifestly excessive then, charge 7 being the base sentence, it must follow that the total effective sentence is manifestly excessive overall.
The applicant submits that the following mitigating factors should have been considered:
(a) the guilty plea;
(b) that the applicant had little in the way of relevant prior convictions (and no prior or subsequent matters for theft and no subsequent matters for violence);
(c) the theft of the motor vehicle was in the context of a debt owed to the applicant that was then inflated;
(d) the sentencing judge should not have treated the offence as being aggravated by the ‘considerable value’ of the motor vehicle as there was no evidence as to its value;
(e) the prosecution ought not to have informed the sentencing judge that the motor vehicle was found 'burnt out' after the arrest of the applicant as there was no evidence connecting the applicant to the vehicle after his arrest;
(f) the circumstances of the false imprisonment did not involve a weapon, was short in duration and, although there were two punches to the victim, there was no injury sustained by the victim;
(g) the offending occurred in the context of the applicant’s pursuit of a debt and its inflation;
(h) the applicant has support in the community and thus, has good prospects of rehabilitation; and
(i) the delay of two years and seven months between the offending and the imposition of the sentence.
Respondent’s submissions
In respect of charge 3, the respondent submitted that the context was not that the applicant used the vehicle without the consent of the owner. Rather, the victim handed over the key unwillingly as a result of the threats made by the applicant and his intimidating conduct.
The respondent submitted that the sentence of 12 months, with six months cumulation was within range and arguably lenient, in circumstances that involved intimidating conduct and was committed within weeks of the applicant being placed on a CCO.
The respondent submitted that the sentencing judge made no finding as to the value of the car. As to his description of the car as ‘valuable property’, it was clearly of some value as it was being sought by the applicant as payment for a debt.
Although there was a reference to the car having been discovered burnt out, this was not part of the factual matrix that the sentencing judge used to conclude that the charge was a serious one.
In respect of charge 7, the respondent submitted that the charge was rightly described by the sentencing judge as a ‘serious example’. The applicant took the victim from his home against his will in order to intimidate him, in the presence of his daughters.
This offence was committed within weeks of the applicant being placed on a CCO.
The sentencing judge took into consideration that the false imprisonment charge was ‘relatively unsophisticated’ and that ‘it was short lived [and] did not involve any weapons or any injury’. Those facts had to be balanced against the aggravating circumstances and the seriousness of the offences.
The respondent submitted that the theft of the motor vehicle in the context of the applicant’s pursuit of a debt is not something that the Court should regard as a mitigating circumstance.
The respondent submitted that the sentencing judge did take into account that the applicant had support in the community and good prospects of rehabilitation. The sentencing judge concluded that, by reason of these matters, it was appropriate to sentence the applicant to a total effective sentence that was less than what might otherwise have been called for, given the objective gravity of the applicant's offending, but together with a CCO.
The respondent submitted that none of the matters that the applicant raised, either on their own or in combination, make out ground 1.
Ground 2 — Manifest excess of the resentence
Applicant’s submissions
The applicant submitted that the sentencing judge failed to give proper weight to the following circumstances when sentencing the applicant:
(j) pursuant to s 83AS(2) of the Sentencing Act, insufficient consideration and weight was given to the applicant completing a 250 hour community work component of the CCO, which was the principal punitive aspect of the order and sentence imposed;
(k) that the circumstances of the offending of false imprisonment, the role of the applicant and factors in mitigation such as his age at the time of the offending, delay of three years in the imposition of the sentence and lack of prior criminal history at the time of the offending;
(l) the 24 days of pre-sentence detention was not taken into account and declared.
The applicant submitted that the order for cumulation of two months of the six month sentence imposed was manifestly excessive given that there was insufficient basis to do so. The applicant submitted this constituted double punishment over and above the 250 hours of unpaid community work the applicant had completed under the CCO.
Respondent’s submissions
The respondent submitted that the sentencing judge took into account all of the matters the applicant outlined.
The sentence imposed on the applicant was significantly less than his co‑offenders, who ‘received serious sentences of imprisonment in the range of three years with a minimum of 18 months or 16 months respectively on the bottom’.
Although the breach of the CCO carries with it a maximum penalty of three months’ imprisonment, no separate penalty was imposed for the breach itself. Rather, the judge cancelled the order and re-sentenced the applicant.
The sentence of six months’ imprisonment, with two months cumulation cannot be said to be manifestly excessive. This was especially so in circumstances where the applicant had previously been given a chance in respect of this offence by the imposition of the CCO, which he breached within weeks by committing further offences.
Applicant’s oral submissions
In oral submissions, counsel for the applicant submitted that the sentences were manifestly excessive given that, from 2013 until 2016, the applicant had not engaged in any conduct of the type for which he had been sentenced on these indictments. There had been no suggestion that he had been violent; his prospects of rehabilitation had not been given proper weight.
Analysis: ground 1
The applicant must demonstrate that the sentence imposed is ‘wholly outside the range of sentencing options available’[2] to the sentencing judge. As has been said on many occasions, sentencing is pre-eminently a function confided to the sentencing judge. The Court of Appeal will only intervene where error is established; absent error, it is not open to it to substitute its preferred sentence for that of the sentencing judge.
[2]R v Boaza [1999] VSCA 126 [26] (Winneke P). See also DPP v Karazisis (2010) 31 VR 634, 662–63 [127].
In the present case, the sentencing judge had been particularly lenient when sentencing the applicant on indictment A12554237. Having given the applicant every opportunity to reform himself, the sentencing judge had before him someone who had immediately resumed his intimidation of people. This time, he had done so as a principal; he had done so over an extended period of time to more than one person; and had done so in the presence of the children of his victims.
In my opinion, it is not reasonably arguable that the individual sentences are manifestly excessive, given (a) the maximum penalty for each of the offences; (b) the escalation of seriousness of the offending; (c) that the offending occurred within weeks of the applicant being placed on a CCO. Nor is it reasonably arguable that the orders for cumulation are excessive.
In each case, the sentencing judge imposed a CCO and did not fix a non-parole period.[3]
[3]See Boulton v The Queen (2014) 46 VR 308, 351–54 [196]–[200].
I would therefore refuse the application for leave to appeal on ground 1.
Analysis: ground 2
In Boulton v The Queen,[4] this Court said that a CCO is not simply a rehabilitative disposition but also a punitive one. The punitive elements of a CCO lie in its duration, the nature of the conditions that may attach to it and their duration. It is true that the applicant had completed the unpaid community work that formed part of the CCO that had been imposed on him on 7 November 2013. However, the applicant had abused the trust that was placed in him by the sentencing judge. Given that the duration of the CCO is part of its punitive character, it is to be recalled that the applicant embarked almost immediately after he was sentenced on the same sort of conduct that had led to the imposition of the CCO. Accordingly, subject to one matter, I do not think that ground 2 is reasonably arguable.
[4]Ibid 330–33 [85]–[102], 342 [150]–[151].
When the sentencing judge imposed his sentence for the offending charged on indictment A12554237, he declared 24 days of pre-sentence detention.[5] However, while the formal record of orders made in the criminal jurisdiction of the County Court includes reference to the 121 days of pre-sentence detention in respect of indictment D13739206, there appears to be no formal record made of the 24 days pre-sentence detention made in respect of indictment A12554237.
[5]Sentencing Remarks [38].
As I understand it the parties are agreed that the formal record of the orders made 1 July 2016 is deficient in that it does not reflect the judge’s declaration of 24 days pre-sentence detention on indictment A12554237.
Section 280 of the Criminal Procedure Act 2009 provides:
Determination of application for leave to appeal under section 278
(1)The Court of Appeal may refuse an application for leave to appeal under section 278 in relation to any ground of appeal if—
(a)there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed; or
(b)there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence despite there being an error in the sentence first imposed.
Note
Subsection (3) empowers the Court of Appeal to correct a sentence if an application is refused in the circumstances referred to in subsection (1)(b).
(2)An application may be refused under subsection (1) even if the Court of Appeal considers that there may be a reasonably arguable ground of appeal.
(3)On refusing an application by reason of subsection (1)(b), the Court of Appeal may, if it considers it appropriate to do so—
(a)amend the sentence first imposed by substituting a less severe sentence; and
(b)make any other order that the Court of Appeal considers ought to be made.
Note
If an application for leave to appeal is heard and refused by a single Judge of Appeal under section 315(1), section 315(2) entitles the applicant to have the application determined by the Court of Appeal.
Pursuant to s 280(3)(b), the formal order of the County Court should be amended by:
(m) removing from it all references to any declaration for pre-sentence detention; and
(n) including within it the following:
Further declare the period that the prisoner has already been in custody in respect of these offences namely 145 days be reckoned as a period of imprisonment already served under this sentence, which is to be deducted administratively.
Otherwise, I would refuse the application for leave to appeal.
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