Mustafa Yehia v The Queen - [2015] VSCA 119

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0042

MUSTAFA YEHIA	Applicant
v
THE QUEEN	Respondent

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE
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JUDGES:	WEINBERG JA and BLUE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 May 2015
DATE OF JUDGMENT:	21 May 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 119
JUDGMENT APPEALED FROM:	DPP v Yehia [2015] VCC 106 (Judge McInerney)

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CRIMINAL LAW – Sentence – One charge of dangerous driving causing serious injury and one charge of reckless conduct endangering serious injury – Applicant sentenced to 3 years’ imprisonment – Offending gave rise to breach of suspended sentence of 6 months’ imprisonment imposed some years earlier for false imprisonment – Sentencing judge restored entirety of suspended sentence and ordered that it be served cumulatively upon sentence imposed for driving offences – Sentencing Act 1991 s 83AR(3)(b) provided that a restored suspended sentence is presumed to be served cumulatively upon any sentence of imprisonment ‘previously imposed’ – Meaning of ‘previously imposed’ considered – At sentencing hearing judge pronounced restoration of suspended sentence prior to imposing sentences for driving offences – Whether as a result of order in which sentences pronounced presumption of cumulation applicable – Ground not reasonably arguable – Whether sentences manifestly excessive – Sentences clearly within range – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D D Gurvich	Haines and Polites
For the Crown	Ms S M K Borg	Ms V Anscombe, Acting Solicitor for Public Prosecutions

WEINBERG JA
BLUE AJA:

On 24 October 2014, the applicant pleaded guilty in the County Court at Melbourne to one charge of dangerous driving causing serious injury, and one charge of reckless conduct endangering serious injury. On 3 February 2015, he was sentenced as follows:

Charge Offence Maximum Sentence Cumulation

1. Dangerous Driving Causing Serious Injury [Crimes Act 1958 s 319(1A)] 5 years’ imprisonment 2 years and 6 months’ imprisonment Base

2. Reckless Conduct Endangering Serious Injury [Crimes Act 1958 s 23] 5 years’ imprisonment 2 years imprisonment 6 months

The commission of these offences gave rise to a breach of a suspended sentence of six months’ imprisonment imposed by the same judge on 27 February 2012. The applicant was dealt with for that breach at the same time as he was sentenced for the two offences to which he pleaded guilty.

He was sentenced as follows in relation to that breach:

Charge Offence Maximum Sentence Cumulation

1. False Imprisonment [Common Law]
10 years’ imprisonment
6 months suspended sentence wholly restored 6 months

Related Summary Offence Contravene Suspended Sentence Order [Crimes Act 1958 s 83AB] 3 months’ imprisonment 3 months’ imprisonment -

The net effect of all these matters is reflected in the following table:

Total Effective Sentence: 3 years 6 months

Non-Parole Period: 2 years 6 months

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 65 days

6AAA Statement: The learned sentencing judge stated that, but for the plea of guilty, he would…

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 119
Decision Date: 21 May 2015

CaseChat Overview and Summary

Mustafa Yehia was convicted of one count of dangerous driving causing serious injury and one count of reckless conduct endangering serious injury. He was sentenced to three years' imprisonment. The matter was heard in the High Court of Australia. The primary issue for the court was whether the presumption under section 83AR(3)(b) of the Sentencing Act 1991 that a restored suspended sentence be served cumulatively applied in this case. The court also considered if the sentences were manifestly excessive.

The court held that the presumption of cumulation applied because the sentencing judge pronounced the restoration of the suspended sentence prior to imposing the sentences for the driving offences, despite the fact that the suspended sentence was for a previous offence. The court found that the ground for appeal was not reasonably arguable as the language of the statute was clear and unambiguous. The court further determined that the sentences were not manifestly excessive as they fell well within the range of sentences that could have been imposed for the offences. Consequently, leave to appeal was refused.

In summary, the High Court held that the presumption of cumulation applied, the appeal was not reasonably arguable, and the sentences were not manifestly excessive. The appeal was therefore dismissed.

Orders