Mohamed v The King [No 2] - [2023] VSCA 177

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0031
S EAPCR 2021 0032

AHMED MOHAMED	Applicant
v
THE KING [NO 2]	Respondent

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JUDGES:	EMERTON P, NIALL AND T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 April 2023 and 20 July 2023
DATE OF JUDGMENT:	3 August 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 177
JUDGMENT APPEALED FROM:	[2019] VSC 498 (Tinney J)

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CRIMINAL LAW – Appeal – Arson and terrorism offences – Two sentences – Second sentence partially cumulated upon first sentence – Applicant appealed against both sentences – Appeal against first sentence abandoned at hearing – Decision of Court of Appeal reserved – Judgment delivered in Totaan v The Queen requiring family hardship to be considered – Applicant seeks to re-instate abandoned appeal against first sentence – Judgment delivered by Court of Appeal allowing appeal and adjusting cumulation on second sentence – Applicant’s appeal against first sentence now considered – Whether sentencing judge in first sentence erred in failing to consider family hardship as required by Totaanv The Queen – Sentencing error established – No reasonable prospect of Court reducing total effective sentence despite sentencing error – Leave to appeal refused.

Totaan v The Queen (2022) 108 NSWLR 17 referred to.

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Counsel
Applicant:		Mr DA Dann KC with Mr PJ Smallwood
Respondent:		Ms K Breckweg
Solicitors
Applicant:	Lawyers Corp Pty Ltd
Respondent:	Mr M de Crespigny, Acting Solicitor for Public Prosecutions (Cth)

EMERTON P
NIALL JA
T FORREST JA:

Introduction

The applicant has applied for leave to appeal against a sentence imposed by Tinney J, in the Supreme Court at Melbourne, pursuant to section 278 of the Criminal Procedure Act 2009 (‘the CPA’).
We have determined that, although the applicant has established sentencing error (albeit through no fault of the judge), there is no reasonable prospect that the Court would reduce the total effective sentence despite this sentencing error.[1] What follows are our reasons for refusing this application.
[1]See section 280(1)(b) of the CPA.

Background

Starting from late October 2016, the applicant and three co-offenders (Abdullah Chaarani, Hamza Abbas and Ibrahim Abbas) engaged in a number of preparatory acts towards committing a terrorist attack. These acts included:
(a)purchasing chemical, explosive substances and mechanical and electrical components for use in the manufacture of improvised explosive devices (‘IEDs’);
(b)taking steps towards manufacturing and testing IEDs;
(c)purchasing bladed weapons;
(d)taking steps to gain access to firearms; and
(e)conducting reconnaissance of potential target areas of Federation Square, Flinders Street Train Station and Saint Paul’s Cathedral.[2]
We shall refer to this as the Federation Square offence.
[2]R v Abbas [2019] VSC 775, [1]–[6] (‘Reasons for Second Sentence’).
On 25 November 2016, the applicant and Chaarani set fire to a Shia mosque.[3] The fires that they lit self-extinguished, causing very limited damage to the mosque. On 11 December 2016, the applicant, Chaarani and another co-offender, Hatim Moukhaiber, set fire to the mosque again, leading to its substantial destruction by fire.[4] The purpose of these actions was…

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 Mohamed v The King [No 2]

Details

AGLC: Mohamed v The King [No 2] [2023] VSCA 177
Case: [2023] VSCA 177
Decision Date: 3 August 2023

CaseChat Overview and Summary

In Mohamed v The King, the applicant appealed against sentences imposed following convictions for arson and terrorism offences. The case was heard in the Court of Appeal of the Supreme Court of Victoria. The applicant's appeal was initially against both sentences, but the appeal against the first sentence was abandoned at the hearing. The Court reserved its decision on the appeal against the second sentence and the application to re-instate the abandoned appeal against the first sentence. Following the decision in Totaan v The Queen, the Court was required to determine whether the sentencing judge erred by failing to consider the impact of the sentence on the applicant's family.

The court had to decide if the sentencing judge made an error by not considering the family hardship as required by Totaan v The Queen when imposing the first sentence. The court found that the sentencing judge did indeed make an error in not considering the family hardship. However, the court also concluded that there was no reasonable prospect that the Court could reduce the total effective sentence despite this error. The court held that the error did not warrant a reduction in the sentence due to the severity of the crimes committed.

The Court of Appeal allowed the appeal against the first sentence, acknowledging the sentencing error but declining to adjust the sentence. The court also considered the cumulation of the second sentence, delivering a judgment that adjusted the cumulation on the second sentence. Ultimately, the court refused leave to appeal, confirming the applicant's appeal against the first sentence was now considered.

Orders