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Mikael v The Queen

Mikael v The Queen

Case [2022] VSCA 119 23 June 2022

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0017

STEVEN MIKAEL	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 June 2022
DATE OF JUDGMENT:	23 June 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 119
JUDGMENT APPEALED FROM:	[2021] VCC 1295 (Judge Gucciardo)

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CRIMINAL LAW – Appeal – Sentence – Attempted aggravated carjacking and damaging property – Sentences of four years’ imprisonment and 12 months’ imprisonment with six months’ cumulation – Whether individual sentences and total effective sentence of four years and six months’ imprisonment with three years non-parole manifestly excessive – Bad criminal history – Poor prospects of rehabilitation – Sentences stern but within range – Appeal dismissed.

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Counsel
Applicant:		Ms G Connelly
Respondent:		Mr C Boyce QC
Solicitors
Applicant:	Valos Black & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
T FORREST JA:

Introduction

On 16 August 2021, the applicant, now aged 40 years,[1] pleaded guilty in the County Court to attempted aggravated carjacking with an offensive weapon[2] and intentionally damaging property.[3] He also pleaded guilty to the related summary offence of committing an indictable offence whilst on bail.[4]
[1]His date of birth is 27 July 1981.
[2]Crimes Act 1958, ss 79A and 321P. The maximum penalty is 20 years’ imprisonment.
[3]Crimes Act 1958, s 197. The maximum penalty is 10 years’ imprisonment.
[4]Bail Act 1986, s 30B. The maximum penalty is three months’ imprisonment.
Following a plea, on 6 September 2021 the judge sentenced the applicant to a total effective sentence of four years and six months’ imprisonment, with a non-parole period of three years, in accordance with the following table:

Charge

Offence

Sentence

Cumulation

1

Attempted aggravated carjacking

4 years

Base

2

Intentionally damaging property

12 months

6 months

Summary

Committing an indictable offence on bail

3 months

—

Total effective sentence:

4 years and 6 months’ imprisonment

Non-parole period:

3 years

Pre-sentence detention:

942 days

Section 6AAA statement:

5 years with 3 years and 6 months non-parole

Other orders:

Forfeiture

The applicant now seeks leave to appeal on a ground that contends that the ‘sentences on charges 1, 2 and the related summary offence, the order for cumulation and the non-parole period are manifestly excessive in all the circumstances’.
For the reasons that follow, we would grant leave to appeal, but dismiss the appeal.

The offending

It is convenient to adopt the description of the applicant’s offending as set out in the Summary of Prosecution Opening:[5]
[5]Footnotes omitted; emphasis added.
1. … At the time of this offending, [the applicant] was 37 years old.
2. The complainants, Hamze Haddara, and Kamal Kanaan, were unknown to the [applicant].
3. On 15 November 2018 at about 1.45 am, Haddara was parked in his black BMW sedan, in Malmsbury Drive, Meadow Heights. He was on the phone to his partner, waiting for her to return home.
4. Haddara saw a silver Mercedes C180 stop in front…

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 Mikael v The Queen

Details

AGLC: Mikael v The Queen [2022] VSCA 119
Case: [2022] VSCA 119
Decision Date: 23 June 2022

CaseChat Overview and Summary

The appellant, Mikael, appealed against his sentences for attempted aggravated carjacking and damaging property, arguing that the individual and cumulative sentences were manifestly excessive. The case was heard in the court of appeal. The primary issue before the court was whether the sentences imposed, which included four years’ imprisonment for the attempted aggravated carjacking and 12 months’ imprisonment for damaging property, with six months’ cumulation, were manifestly excessive. The appellant argued that the individual sentences and the total effective sentence of four years and six months’ imprisonment with three years non-parole were excessively harsh, given his poor criminal history and limited prospects of rehabilitation.

The court considered the principles of sentencing for attempted aggravated carjacking and damaging property, noting the need to balance the deterrence of crime, the protection of the community, and the appellant's prospects of rehabilitation. The court also acknowledged the appellant's significant criminal history, which included multiple convictions for serious offences. Despite these factors, the court found that the sentences were within the appropriate range for the offences committed and took into account the need to maintain public confidence in the criminal justice system. The court concluded that while the sentences were stern, they were not manifestly excessive, and the appeal was dismissed.

Orders