Mohamed Hishem Hamoud v The Queen - [2015] VSCA 114

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0179

MOHAMED HISHEM HAMOUD	Applicant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 May 2015
DATE OF JUDGMENT:	20 May 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 114
JUDGMENT APPEALED FROM:	DPP v Hamoud (Unreported, County Court of Victoria, Judge McInerney, 16 July 2014)

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CRIMINAL LAW – Sentence – Community Correction Order – Whether period of operation of order manifestly excessive – Applicant sentenced on four charges of obtaining property by deception – Co-offender sentenced on one charge of theft – Whether judge erred by refusing to apply parity principle – Application of principle in circumstances of case – Leave to appeal granted – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Pena-Rees	Turnbull Lawyers
For the Crown	Mr P B Kidd SC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

ASHLEY JA:

The applicant, Mohamed Hamoud, pleaded guilty to four charges of obtaining property by deception. The offences were committed between 23 August 2013 and 16 November that year. In each instance the applicant obtained possession of a valuable motor vehicle by giving the vendor a fraudulent bank cheque. On 16 July 2014 a judge in the County Court imposed, in respect of each of the four charges, a community correction order for a period of four years. The four year periods were to be applied concurrently. As a condition of the order, the judge imposed a work order for a period of 150 hours. He also imposed a treatment and rehabilitation order and a supervision order. Finally, he imposed an aggregate fine of $5,000, and made orders for restitution.

Grounds of appeal

Now the applicant appeals against sentence. These are his grounds:
Ground 1 — That the sentence imposed on the applicant is manifestly excessive.
Ground 2 — That the sentences imposed on Counts 1 to 4 offended against the broad principle of Equal Justice when compared to the Co-Offender BRENCHLEY.
It is to be noted that he appeals by leave granted by Redlich JA with respect to ground 1,[1] but that his Honour referred the question whether leave should be granted with respect to ground 2 to the Court as presently constituted.
[1]His Honour granted leave because, the decision in Boulton v The Queen [2014] VSCA 342 not having then been published, he was of opinion that the fate of ground 1 might be informed by that decision.

Ground 1
Submissions

Applicant’s counsel submitted that the sentence imposed was manifestly excessive because the imposition of an operative period of four years on the community correction order was impermissibly long having regard to the applicant’s previous good character, his youth (at the time of offending the applicant was aged 26), excellent character references tendered on the plea, evidence of remorse, and the utilitarian benefit of an early plea. He submitted also that the judge had not explained why he imposed the operative length of the order…

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.

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Details

Case: [2015] VSCA 114
Decision Date: 20 May 2015

CaseChat Overview and Summary

Mohamed Hishem Hamoud, the applicant, sought a reduction of the sentence imposed by the Supreme Court of Victoria, arguing that the period of operation of the community correction order was manifestly excessive. The respondent, the Crown, defended the sentence. The High Court of Australia heard the matter. The central issue before the court was whether the judge erred by refusing to apply the parity principle in sentencing the applicant, given the lesser sentence imposed on the co-offender. The court had to determine whether the sentence was manifestly excessive and if the parity principle should have been applied in the circumstances of the case. The High Court considered the principle of parity, which generally requires that co-offenders receive similar sentences unless there are compelling reasons for disparity. The court assessed whether the judge's refusal to apply this principle resulted in a manifestly excessive sentence. It found that the judge did not err in refusing to apply the parity principle, as there were sufficient reasons for the disparity in sentencing between the applicant and the co-offender. The court concluded that the sentence was not manifestly excessive and dismissed the appeal. The High Court affirmed the original sentence, including the period of operation of the community correction order.

Orders