Mohamed Hishem Hamoud v The Queen
[2015] VSCA 114
•20 May 2015
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 that he did.
In response, counsel for the Crown submitted that what the applicant was seeking to do was to bring to account, as matters going in support of the contention of manifest excess, matters which the judge had taken into account in determining that a community correction order should be imposed rather than a custodial sentence. It was submitted that it did not follow from the fact that there were matters which persuaded the judge to impose a community correction order that such matters should equally weigh in reduction of the operative period of such an order. That was not necessarily so. Thus, for instance, the length of such an order might reflect perceived rehabilitative leads. Further, the seriousness of the offending, deserving of punishment, had been a relevant consideration. The length of operation of an order, counsel noted, had been discussed on the plea in that connection. Further again, counsel submitted, it is the entirety of the sentencing disposition which must be considered, not simply the length of the community correction order which was imposed. So, for instance, the intensive compliance period might be regarded as relatively short, likewise the number of work hours required. So also the additional fine of $5,000.
Conclusion
In my opinion, there was considerable force to the submissions for the Crown. Viewed overall, the sentence imposed could not be considered manifestly excessive. To the contrary, notwithstanding matters standing in mitigation, the sentence might be regarded as lenient. Another judge might have concluded that imposition of an immediate custodial sentence was necessary, or else that more onerous conditions should be imposed upon a community correction order.
Ground 2
The judge’s reasons
The judge described the co-offender’s role, the sentence imposed upon him, and the application of the parity principle this way:
The criminality was effected with a fellow co-accused, Mr Brenchley. It seems that Mr Brenchley was involved in all of the crimes and in their devising and planning. However, remarkably Mr Brenchley was only charged with one count of theft involving the Mercedes owned by Mr Bentley, was taken to the Magistrates’ Court, given a good behaviour bond for 12 months with $1,000 paid to the court. How that occurred, I do not know but as I indicated clearly he is lucky and I do not in any way take such a sentence as appropriate or as a matter which compels me by way of parity.
Submissions
Applicant’s counsel submitted that both his client and Brenchley (‘B’) were young men without a criminal history. Each came from a respected family and had family support. Both presented character references that were glowing. The distinguishing features between the circumstances of the applicant and B were the number of charges that they respectively faced and the jurisdiction in which their pleas were heard. Counsel emphasised that the applicant and B had a common intention and were equally involved in the scheme to fraudulently acquire the vehicles, albeit that the applicant was, colloquially, the ‘front man’ in dealing with the vendors.
Counsel further submitted that the passage cited at [6] above showed that the judge took the view that the sentence imposed on B should have no bearing upon the sentence imposed upon the applicant. For his Honour to have so concluded was erroneous in principle. The judge should have had some regard to the sentence imposed on B, albeit that the parity principle did not in terms apply. Counsel relied upon this passage in the judgment of Redlich and Bongiorno JJ in Farrugia v R:[2]
If there are offenders whose offending is very similar and is in some way related, the sentence imposed on one offender may be a relevant factor to take into account in the exercise of the sentencing discretion for the other. The connection between the offenders may not fit within the rubric of a common criminal enterprise. Their offending may involve the same victim or the same subject matters, or there may be some other connection. The weight to be attributed to the sentence which is the subject of comparison will depend upon such things as the nexus between the offenders, the degree of similarity of their conduct, and factors personal to each offender. Depending on those circumstances, the principle of equal justice may require a sentencing judge to give the specific sentence imposed on the other offender substantial weight.
[2](2011) 32 VR 140, 147, [27].
Counsel also relied upon this passage in the judgment of Neave and Weinberg JJA in Taleb v R:[3]
… the avoidance of an unjustifiable disparity between the sentence imposed on the appellant and a co-offender may require the reduction of the appellant’s sentence to a level which might otherwise be regarded as the bottom of the range, but not to the point where the offender’s sentence is wholly in appropriate or outside the range.
[3][2014] VSCA 96, [48].
Counsel for the Crown submitted that the applicant’s situation and that of the co-offender were not analogous. The applicant had pleaded guilty to four charges of obtaining property by deception. The co-offender had pleaded guilty to one charge of theft, which related to only one of the four vehicles which had been fraudulently acquired. Whatever the reason might be, the fact was that B had faced only one charge. There was a significant difference in the charges to which they had respectively pleaded guilty.
Counsel for the Crown accepted that the sentence imposed on the co-offender was not entirely irrelevant to the sentence imposed upon the applicant. Nonetheless, counsel submitted, that sentence was not of much weight in the sentencing synthesis, given the great difference in the charges preferred against B and the applicant.
Counsel further submitted that his Honour’s observation that the sentence imposed on the co-offender was not ‘a matter which compelled [him] by way of parity’ was ambiguous. It was not clear whether his Honour meant that the sentence imposed on the co-offender had no bearing upon the sentence to be imposed upon the applicant, or simply that he was not obliged to impose the same penalty. The better view, according to counsel’s submission, was that his Honour was only saying the latter.
In any event, counsel submitted, the sentence imposed did not in fact indicate failure to have regard to parity, so far as it was relevant.
Conclusions
I tend to the view that the observation which his Honour made, cited at [6] above, was intended to convey his conclusion that neither the parity principle, nor something akin to it, had any application in this case. In that event, his Honour erred, because it could not be said — as the Crown conceded — that the sentence imposed upon the co-offender was entirely irrelevant.
On the other hand, I am not persuaded that any different sentence should be imposed. Whilst there was apparently evidence suggestive that the two men had been participants in the overall offending, that was not reflected by the charges laid. The sentencing judge did not know, and neither do we, why the men were charged as they were. B may have been ‘lucky’, as his Honour opined; or there may have been some difficulty in the Crown proving B’s participation in the frauds. The stark fact remains that the applicant pleaded guilty and was sentenced in respect of four serious charges, whilst the co-offender pleaded guilty and was sentenced in respect of one charge only, of a related but nonetheless different character. In my opinion the applicant has no basis for legitimate complaint about the sentences passed upon him by reason of the sentence imposed upon the co-offender.
On this ground, I would grant leave to appeal but dismiss the appeal.
Orders
I would grant leave to appeal on ground 2, but would dismiss the appeal generally.
PRIEST JA:
I agree.
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