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Naddaf v The Queen

Naddaf v The Queen

Case [2020] VSCA 41 6 March 2020

High Moral Culpability

Plea of Guilty

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0234

MOHAMED NADDAF	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, KAYE and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 March 2020
DATE OF JUDGMENT:	6 March 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 41
JUDGMENT APPEALED FROM:	[2018] VSC 429 (Champion J)

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CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty to manslaughter by criminal negligence – Total effective sentence of 11 years’ imprisonment, non-parole period of 8 years – Applicant failed to obtain medical assistance for seriously injured wife – Protracted period of offending – Whether sentence manifestly excessive – Leave to appeal refused – Very serious example of manslaughter by criminal negligence – Aggravating factors – Duty of care – High moral culpability – Plea of guilty – No other substantial mitigating circumstances – Current sentencing practices only one of a number of factors to be considered – Reid v The Queen (2010) 29 VR 446, R v Jagroop (2009) 22 VR 80, R v Blackwell [2013] VSC 499, R v Lai [2015] VSC 346, R v Vandergulik [2009] VSC 3 and R v Russo [2018] VSC 395 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Gullaci	Doogue & George Pty Ltd
For the Respondent	Ms M Mahady	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KAYE JA
WEINBERG JA:

The applicant pleaded guilty to the manslaughter of Ashlee Brown at Craigieburn between 2 November 2016 and 6 November 2016. After a plea presented on his behalf, he was sentenced to 11 years’ imprisonment with a non-parole period of 8 years.[1] He seeks leave to appeal the sentence on the ground that it is manifestly excessive.
[1]R v Naddaf [2018] VSC 429 (‘Reasons’).

The applicant’s guilty plea was made on the basis of manslaughter by criminal negligence. In particular, it was put, and accepted by the prosecution, on the basis of the failure of the applicant to obtain medical assistance for Ms Brown after she had sustained multiple injuries due to an assault inflicted upon her in a Hyundai motor vehicle that was located in the garage of their family home. The prosecution was not able to identify who had inflicted the injuries on Ms Brown.

The circumstances of the offence

At the time of her death Ms Brown was 25 years of age, and the applicant was 37 years of age. They had been living together at premises in Craigieburn for approximately five or six years. Residing at the home with them were their three children, a son aged three years, a daughter aged two years and a son who was then six months of age.

At approximately 10.55 am on Sunday 6 November 2016, the applicant telephoned the Emergency Services number triple 0 and requested ambulance assistance. He told the operator that he had found his wife in the vehicle some days previously, and that she was now cold to touch and stiff.

When…

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 Naddaf v The Queen

Details

AGLC: Mohamed Naddaf v The Queen [2020] VSCA 41
Case: [2020] VSCA 41
Decision Date: 6 March 2020

CaseChat Overview and Summary

The applicant, Naddaf, appealed against the sentence imposed for manslaughter by criminal negligence, arguing that the total effective sentence of 11 years' imprisonment, with a non-parole period of 8 years, was manifestly excessive. The case was heard in the Supreme Court of Victoria. The primary issue before the court was whether the sentence imposed was manifestly excessive, given the nature of the offence and the mitigating factors presented.

The court considered several factors in its decision, including the applicant's failure to obtain medical assistance for his seriously injured wife, the protracted period of offending, and the degree of moral culpability. The court noted that this was a very serious example of manslaughter by criminal negligence, with significant aggravating factors such as the applicant's duty of care and high moral culpability. However, the plea of guilty was considered a mitigating factor. The court found that there were no other substantial mitigating circumstances present. It was held that while current sentencing practices are an important consideration, they are only one of many factors to be taken into account in determining whether a sentence is manifestly excessive.

The court ultimately found that the sentence imposed was not manifestly excessive. It relied on several previous cases, including Reid v The Queen, R v Jagroop, R v Blackwell, R v Lai, R v Vandergulik, and R v Russo, to support its decision. The appeal was dismissed, and the original sentence was upheld.

Orders