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Najee Moussa v The King

Najee Moussa v The King

Case [2024] VSCA 113 30 May 2024

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0155

NAJEE MOUSSA	Applicant
v
THE KING	Respondent

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JUDGES:	KENNEDY and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 May 2024
DATE OF JUDGMENT:	30 May 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 113
JUDGMENT APPEALED FROM:	[2023] VCC 1415 (Judge Syme)

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CRIMINAL LAW – Leave to appeal – Sentence – Attempted home invasion – Applicant pleaded guilty to one charge of attempted home invasion, one charge of commit indictable offence whilst on bail and one charge of contravene personal safety intervention order – Sentenced to 3 years and 9 months’ imprisonment in respect of attempted home invasion charge – Total effective sentence of 3 years and 11 months’ imprisonment with non-parole period of 2 years and 1 month – Whether judge erred in applying parity principle in respect of attempted home invasion charge – Not open to judge to find applicant’s role ‘as significant’ as that of co‑offenders – Judge incorrectly considered applicant’s markedly different prospects of rehabilitation and limited criminal history to be exclusively relevant to non-parole period – Leave to appeal granted – Appeal allowed – Applicant resentenced.

Markovic v The Queen (2010) 30 VR 589; Barbaro v The Queen (2012) 226 A Crim R 354; Kellway (a pseudonym) v The King [2023] VSCA 109, applied.

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Counsel
Applicant:		Mr M Reardon
Respondent:		Ms E Ramsay
Solicitors
Applicant:	Balmer & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KENNEDY JA
T FORREST JA:

On 14 August 2023, following a plea of guilty on 2 May 2023, the applicant was relevantly sentenced by a County Court judge as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Attempted home invasion[1]	20 years’ imprisonment	3 years and 9 months’ imprisonment	Base
Related Summary Offences
4	Commit indictable offence whilst on bail[2]	3 months’ imprisonment	1 months’ imprisonment	Nil
5	Contravene personal safety intervention order[3]	2 years’ imprisonment	3 months’ imprisonment	2 months
Total Effective Sentence:		3 years and 11 months’ imprisonment
Non-Parole Period:		2 years and 1 month
Pre-sentence Detention Declared:		378 days
Section 6AAA Statement:		Total Effective Sentence 5 years and 2 months’ imprisonment Non-Parole Period 3 years

[1]Contrary to Crimes Act 1958, s 321M.

[2]Contrary to Bail Act 1977, s 30B.

[3]Contrary to Personal Safety Intervention Orders Act 2010, s 100(2).

The applicant now seeks leave to appeal against sentence on the following proposed ground:
Ground 1. The sentencing judge misapplied the principle of parity.
Particulars[4]
a.The sentence imposed on Charge 1 gives rise to a justifiable sense of grievance in light of the sentences imposed on Georgiou, Jurjevic and Neyland on Charge 1;
b.That the same sentence was imposed on the applicant, Georgiou and Neyland for Charge 1 fails to reflect:
1.The distinction between the applicant’s role and culpability compared to those of Georgiou and Neyland;
2.The distinction between the applicant’s subjective circumstances and those of Georgiou, Jurjevic and Neyland.
[4]These particulars reflect the fact…

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 Najee Moussa v The King

Details

AGLC: Najee Moussa v The King [2024] VSCA 113
Case: [2024] VSCA 113
Decision Date: 30 May 2024

CaseChat Overview and Summary

Najee Moussa has been granted leave to appeal against his sentence following a guilty plea to charges including attempted home invasion, committing an indictable offence while on bail, and contravening a personal safety intervention order. The applicant was sentenced to a total effective term of 3 years and 11 months imprisonment, with a non-parole period of 2 years and 1 month. The legal issue before the court was whether the primary judge erred in applying the parity principle when sentencing the applicant for the charge of attempted home invasion. Specifically, the court had to determine whether the judge was correct in considering the applicant's role as equally significant as that of his co-offenders and whether the judge appropriately factored in the applicant's markedly different prospects of rehabilitation and limited criminal history when setting the non-parole period.

The court found that the primary judge had misapplied the parity principle by treating the applicant's role as equally significant to his co-offenders without sufficient justification. The court held that the judge should have considered the applicant's lesser role and other mitigating factors more thoroughly when applying the parity principle. Furthermore, the court found that the judge had incorrectly considered the applicant's markedly different prospects of rehabilitation and limited criminal history as exclusively relevant to the non-parole period. Instead, these factors should have been given due weight in the overall sentencing process. Consequently, the court granted leave to appeal, allowed the appeal, and resentenced the applicant.

In light of the above findings, the applicant's sentence was altered. The final orders of the court included a resentence that recognised the applicant's lesser role and other mitigating factors. The applicant's new sentence was determined to be appropriate and reflected the principles of sentencing as outlined in relevant case law.

Orders