Khoshaba v The King - [2023] VSCA 65

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0108

STEVAN KHOSHABA	Applicant
V
THE KING	Respondent

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JUDGES:	BEACH and NIALL JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 March 2023
DATE OF JUDGMENT:	30 March 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 65
JUDGMENT APPEALED FROM:	[2022] VCC 697 (Judge Moglia)

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CRIMINAL LAW – Leave to appeal – Sentence – Principle of parity – Sentence for arson greater than for co-offender – Whether manifest disparity between sentences of applicant and co-offender – Judge wrongly sentenced co-offender by erroneously applying totality – Co-offender’s recently completed sentence for other offending did not justify extent of difference between sentences imposed – Leave to appeal allowed – Appeal granted – Applicant resentenced.

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Counsel
Applicant:		Mr J O’Connor
Respondent:		Mr JCJ McWilliams
Solicitors
Applicant:	Emma Turnbull Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
NIALL JA:

The applicant pleaded guilty to one charge of arson and one summary charge of committing an indictable offence whilst on bail. On 18 May 2022, the applicant was sentenced as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Arson	15 years	3 years and 9 months	Base
2	Commit indictable offence whilst on bail (related summary offence)	3 months	1 month	—
Total Effective Sentence:		3 years and 9 months
Non-Parole Period:		2 years
Pre-sentence Detention Declared:		276 days
Section 6AAA Statement:		Total Effective Sentence 5 years Non Parole-Period 3 years 3 months
Other Relevant Orders: 1. Compensation order under s 86(1) of the Sentencing Act 1991

The applicant’s co-offender, Mahmoud Saba (‘Saba’) pleaded guilty to a single charge of arson arising out of the same event and was sentenced at the same time as the applicant to 2 years and 9 months’ imprisonment, with a non-parole period of 11 months.
The applicant seeks leave to appeal against sentence on the following ground:
The sentence imposed infringes the principle of parity, as there is a manifest disparity between the sentence imposed upon the Applicant and that imposed upon his co-offender, Mahmoud Saba.

The facts

The charge related to a fire at a fruit and vegetable shop.
On 11 July 2019 at around 11:55 pm, the applicant, Saba and an unidentified man arrived at the shop in a car. The unidentified man, having failed to jemmy open the shop doors, drove the car into the doors, breaking them open and permitting access. In doing so, the car became wedged in the door frame preventing the driver from using the driver side door. The applicant and Saba immediately got out of the vehicle and entered the shop. The third man remained in the car, unable to open the driver side door.
Saba carried a plastic petrol container and poured the petrol over the shelves and the shop floor. The applicant pushed a cash register and a set of scales on to the floor. Having both returned to the vehicle, Saba replaced the plastic container into the car’s front footwell and the applicant…

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 Khoshaba v The King

Details

AGLC: Khoshaba v The King [2023] VSCA 65
Case: [2023] VSCA 65
Decision Date: 30 March 2023

CaseChat Overview and Summary

Khoshaba v The King is a case before the court concerning an application for leave to appeal against the sentence imposed on the applicant for his involvement in an arson offence. The applicant, Khoshaba, argued that the sentence imposed was manifestly unjust and disproportionate in comparison to that of his co-offender, who was involved in the same crime. The case was heard in the High Court of Australia.

The primary legal issue before the court was whether the principle of parity, which requires sentences to be comparable between co-offenders, had been breached. Khoshaba argued that the sentence imposed on him was significantly greater than that of his co-offender, despite their equal involvement in the crime. The court was required to determine whether the sentencing judge had erred in applying the principle of totality, which allows for a reduction in sentence where an offender is convicted of multiple offences, and whether the co-offender’s recently completed sentence for other offences justified the extent of the disparity between the sentences.

The court found that the sentencing judge had indeed erred in applying the principle of totality when sentencing the co-offender, which resulted in a manifest disparity between the sentences of Khoshaba and his co-offender. The court held that the co-offender’s recently completed sentence for other offences did not justify the extent of the difference between the sentences imposed. Consequently, the court granted Khoshaba leave to appeal and allowed the appeal, finding that the sentence imposed on him was manifestly unjust and disproportionate. As a result, Khoshaba was resentenced.

No additional final orders were made in the case.

Orders