Mohammed Haddara v The Queen - [2018] VSCA 303

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0210

MOHAMMED HADDARA	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST AND BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	16 November 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 303
JUDGMENT APPEALED FROM:	[2018] VCC 1597

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CRIMINAL LAW – Sentence – Application for leave to appeal – Theft (3 charges), prohibited person possessing imitation firearm, possess drug of dependence, commit indictable offence while on bail and contravene community correction order – Manifest excess – Whether total effective sentence of 1 year and 28 days, with non-parole period of 6 months manifestly excessive – Not reasonably arguable that sentence manifestly excessive – Application for leave to appeal against sentence refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance	Turnbull Lawyers
For the Respondent	No appearance	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA

BEACH JA:

The applicant pleaded guilty in the County Court to three charges of theft, one charge of being a prohibited person in possession of an imitation firearm, one charge of possessing a drug of dependence, one charge of committing an indictable offence while on bail and one charge of contravening a community correction order (‘CCO’). The CCO had been imposed on the applicant in relation to charges of burglary and theft. Because of the contravention of the CCO, the applicant fell to be re-sentenced on the underlying burglary and theft charges.[1]
[1]See s 83AS(1)(c) of the Sentencing Act 1991, and Luu v The Queen [2018] VSCA 92 [20]–[23].

On 11 September 2018, following a plea hearing conducted over three days in July and August 2018, the applicant was sentenced as follows:

Charge

Offence

Maximum

Sentence

Cumulation

1.
Theft

[s 74 of the Crimes Act 1958]
10 years [s 74 Crimes Act 1958] 6 months 1 month

2.
Theft

[s 74 of the Crimes Act 1958]
10 years [s 74 Crimes Act 1958] 6 months 1 month

3.
Prohibited person possess imitation firearm

[s 5AB(2) Control of Weapons Act 1990]
10 years [s 5AB(2) Control of Weapons Act 1990] 9 months Base

4.
Possess a drug of dependence

[s 73(1) Drugs, Poisons and Controlled Substances Act 1981]
1 year [s 73(1) Drugs, Poisons and Controlled Substances Act 1981] 1 month -

5.
Theft

[s 74 of the Crimes Act 1958]
10 years [s 74 of the Crimes Act 1958] 6 months 1 month

6.
Commit indictable offence whilst on bail

[s 30B Bail Act 1977]
3 months [s 30B Bail Act 1977] 1 month -

Contravention of Community Correction Order

Contravene Community Correction Order

[s 83AD(1) Sentencing Act 1991]
3 months [s 83AD(1) Sentencing Act 1991] 1 month 14 days

Burglary

[s 76(1) Crimes Act 1958]
10 years [s 76(3) Crimes Act 1958]
Re-sentenced to 2 months
14 days

Theft

[s 74 of the Crimes Act 1958]
10 years [s 74 Crimes…

Charge	Offence	Maximum	Sentence	Cumulation
1.	Theft [s 74 of the Crimes Act 1958]	10 years [s 74 Crimes Act 1958]	6 months	1 month
2.	Theft [s 74 of the Crimes Act 1958]	10 years [s 74 Crimes Act 1958]	6 months	1 month
3.	Prohibited person possess imitation firearm [s 5AB(2) Control of Weapons Act 1990]	10 years [s 5AB(2) Control of Weapons Act 1990]	9 months	Base
4.	Possess a drug of dependence [s 73(1) Drugs, Poisons and Controlled Substances Act 1981]	1 year [s 73(1) Drugs, Poisons and Controlled Substances Act 1981]	1 month	-
5.	Theft [s 74 of the Crimes Act 1958]	10 years [s 74 of the Crimes Act 1958]	6 months	1 month
6.	Commit indictable offence whilst on bail [s 30B Bail Act 1977]	3 months [s 30B Bail Act 1977]	1 month	-
Contravention of Community Correction Order
Contravene Community Correction Order [s 83AD(1) Sentencing Act 1991]	3 months [s 83AD(1) Sentencing Act 1991]	1 month	14 days
Burglary [s 76(1) Crimes Act 1958]	10 years [s 76(3) Crimes Act 1958]	Re-sentenced to 2 months	14 days
Theft [s 74 of the Crimes Act 1958]	10 years [s 74 Crimes…

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 Mohammed Haddara v The Queen

Details

AGLC: Mohammed Haddara v The Queen [2018] VSCA 303
Case: [2018] VSCA 303
Decision Date: 16 November 2018

CaseChat Overview and Summary

The appellant, Mohammed Haddara, was convicted of multiple offences, including theft, possessing an imitation firearm as a prohibited person, possessing a drug of dependence, committing an indictable offence while on bail, and contravening a community correction order. He was sentenced to a total effective term of imprisonment of 1 year and 28 days, with a non-parole period of 6 months. Haddara applied for leave to appeal against the sentence, arguing that it was manifestly excessive. The central issue before the court was whether the sentence imposed was manifestly excessive and whether there was a reasonable arguability that the sentence was manifestly excessive.

The court considered the principles of sentencing as outlined in previous cases, focusing on whether the sentence was manifestly excessive. It examined the cumulative effect of the offences and the need for the sentence to reflect the gravity of the conduct and to ensure community protection. The court found that while the appellant's offending was serious, it was not so severe as to render the sentence manifestly excessive. The totality principle and the need for general deterrence were considered, but the court concluded that the sentence was within the range of appropriate penalties for the offences committed. Therefore, the court determined that it was not reasonably arguable that the sentence was manifestly excessive.

Consequently, the court refused the application for leave to appeal against the sentence. The appellant's argument that the sentence was manifestly excessive did not meet the threshold required for an appeal, as the sentence was deemed appropriate in light of the totality of the offending and the need for general deterrence and community protection. The court upheld the sentence imposed by the trial judge.

Orders