Mustafa Muhumed v The Queen - [2020] VSCA 91

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0054

MUSTAFA MUHUMED	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 March 2020
DATE OF JUDGMENT:	17 April 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 91
JUDGMENT APPEALED FROM:	[2019] VCC 134 (Judge Trapnell)

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CRIMINAL LAW – Appeal – Sentence – Co-offenders – Parity – Applicant convicted on 3 charges of armed robbery and commit indictable offence whilst on bail – Throw a missile to injure – Unlawful assault – Applicant sentenced to 4 years, 6 months and 28 days’ imprisonment with non-parole period of 3 years’ imprisonment – Co-offender convicted on 2 charges of armed robbery and one charge of commit indictable offence whilst on bail – Co-offender sentenced to 1 year and 6 months’ imprisonment and a 2 year community correction order – Whether disparity between sentences offended parity principle – Whether disparity manifestly excessive – Differences in personal circumstances and role taken in offending – Age – Similar traumatic backgrounds as refugees – Applicant had substantial criminal history – Co-offender principal offender – Co-offender youthful offender with very moderate criminal history serving first sentence in adult jail – Co-offender pleaded guilty at first opportunity – Remorse – Applicant only pleaded guilty to related summary charges and offered to plead guilty to certain lesser alternative charges – Disparity reasonably open – No manifest excess – Leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms M Brown	Ann Valos Criminal Law
For the Respondent	Ms M Mahady	Ms A Hogan, Solicitor for Public Prosecutions

WEINBERG JA
OSBORN JA:

Following a trial before a jury in the County Court, the applicant was convicted in February 2019 of three charges of armed robbery.

On 19 February 2019, the applicant was sentenced by his Honour Judge Trapnell in respect of these charges together with five related summary offences as follows:

Charge	Offence	Maximum	Sentence	Cumulation
Indictment No: H13048900.1
1.	Armed robbery [s 75A(1) of the Crimes Act 1958]	25 years’ imprisonment [s75A(2) of the Crimes Act 1958]	2 years’ imprisonment	6 months
2.	Armed robbery [s 75A(1) of the Crimes Act 1958]	25 years’ imprisonment [s75A(2) of the Crimes Act 1958]	30 months’ imprisonment	Base
3.	Armed robbery [s 75A(1) of the Crimes Act 1958]	25 years’ imprisonment [s75A(2) of the Crimes Act 1958]	30 months’ imprisonment	18 months
Summary charges:
5.	Throw a missile to injure [s 7(g) of the Summary Offences Act 1966]	25 penalty units or 6 months’ imprisonment	7 days’ imprisonment	Served concurrently
6.	Unlawful assault [s 23 of the Summary Offences Act 1966]	15 penalty units or 3 months’ imprisonment	14 days’ imprisonment	7 days
9.	Commit indictable offence whilst on bail [s 30B of the Bail Act 1977]	30 penalty units or 3 months’ imprisonment	30 days’ imprisonment	7 days
10.	Commit indictable offence whilst on bail [s 30B of the Bail Act 1977]	30 penalty units…

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 Mustafa Muhumed v The Queen

Details

AGLC: Mustafa Muhumed v The Queen [2020] VSCA 91
Case: [2020] VSCA 91
Decision Date: 17 April 2020

CaseChat Overview and Summary

Mustafa Muhumed appealed against his sentence for three charges of armed robbery and committing an indictable offence while on bail, as well as throwing a missile to injure. The respondent, The Queen, was represented in the High Court of Australia. The primary legal issue was whether the disparity in sentences between the applicant and his co-offender offended the parity principle, and whether the disparity was manifestly excessive. The court had to consider the differences in personal circumstances and roles played in the offending, as well as the age, backgrounds, and criminal histories of the parties.

The High Court held that the sentencing judge had appropriately considered the differences in personal circumstances and roles played by the applicant and his co-offender. The applicant had a substantial criminal history and was not the principal offender, while the co-offender was a youthful offender with a very moderate criminal history, serving their first sentence in an adult jail. The co-offender had pleaded guilty at the first opportunity and demonstrated remorse, while the applicant only pleaded guilty to related summary charges and offered to plead guilty to certain lesser alternative charges. The court found that the disparity in sentences was reasonably open and not manifestly excessive.

The appeal was dismissed, and leave to appeal was refused. The court concluded that the sentencing judge had properly exercised their discretion, taking into account the relevant factors, and that the disparity in sentences did not offend the parity principle.

Orders