Osman v The Queen - [2015] VSCA 308

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0193

MOHAMED OSMAN	Applicant
V
THE QUEEN	Respondent

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JUDGES:	BEACH and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 November 2015
DATE OF JUDGMENT:	18 November 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 308
JUDGMENT APPEALED FROM:	DPP v Osman (County Court of Victoria, Judge Jordan, 13 May 2015)

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CRIMINAL LAW – Appeal – Sentence – Robbery – Parity – Applicant sentenced to substantially longer term of imprisonment than co-offender – Whether judge erred in application of the parity principle – Distinguishing features between co-offender and applicant – Applicant played more serious role in offending – Applicant did not demonstrate immediate remorse – Applicant had more significant list of prior convictions – Whether sentence manifestly excessive – Significant mitigating factors – Applicant suffered from mental impairment – Applicant had experienced trauma – Whether judge gave excessive weight to general and specific deterrence – Serious offending – Application for leave to appeal granted – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr G C Thomas	Greg Thomas Lawyers
For the Crown	Ms F L Dalziel	Ms V Anscombe, Acting Solicitor for Public Prosecutions

BEACH JA
KAYE JA:

The applicant pleaded guilty to one charge of robbery committed by him, with three co-offenders, shortly after midnight on 26 December 2014. After a plea presented on his behalf, he was sentenced to a term of imprisonment of 18 months, and ordered to serve a Community Corrections Order (‘CCO’) for a period of two years, with conditions including assessment and treatment of, and testing for, drug and alcohol abuse or dependency, mental health assessment and treatment as directed, and supervision pursuant to s 48E of the Sentencing Act 1991. The CCO attached a condition requiring the applicant to participate in services specified in a Justice Plan pursuant to s 80 of the Act. The judge declared 263 days as the period of pre-sentence detention already served by the applicant.

The applicant seeks leave to appeal against the sentence on the following grounds:

Ground 1: The learned sentencing judge erred in the application of the parity principle by imposing upon the applicant an immediate sentence of imprisonment that was 12 months greater than the period of imprisonment imposed in relation to co-offender Mursal.
Ground 2: The sentence was manifestly excessive in light of:
(a)The length of the term of imprisonment imposed in addition to the CCO.
(b)The serious mental impairment suffered by the applicant which was found to make all six Verdins principles relevant to sentencing.

(c) The relevance of the totality principle.
(d)The availability to the applicant of structured supervision and support in the community via a Justice Plan.

The offending

The applicant committed the offence, to which he pleaded guilty, in company with three other young men, namely, Brett Atkinson, Louis Anthony Asanughwa-Onoduamue, and Osman Mursal.

At approximately midnight on 26 December 2014, the four offenders met at the State Library on Swanston Street, Melbourne. They then made…

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 Osman v The Queen

Details

AGLC: Osman v The Queen [2015] VSCA 308
Case: [2015] VSCA 308
Decision Date: 18 November 2015

CaseChat Overview and Summary

Osman was the appellant and the Queen the respondent in this appeal against sentence. The appellant was convicted of robbery and sentenced to imprisonment. He appealed against the length of his sentence, arguing it was manifestly excessive and disproportionate when compared to the sentence given to his co-offender. The appellant contended that the judge had erred in applying the parity principle and had given excessive weight to general and specific deterrence.

The primary legal issues were whether the judge erred in applying the parity principle and whether the sentence was manifestly excessive. The appellant argued that he played a less serious role in the offending, demonstrated immediate remorse, and had fewer prior convictions than his co-offender. The respondent submitted that the appellant played a more significant role, did not demonstrate immediate remorse, and had a more extensive criminal history. The respondent also contended that the sentence was justified by the need for general and specific deterrence.

The court held that the judge did not err in applying the parity principle as there were distinguishing features between the appellant and his co-offender. The appellant played a more serious role in the offending, did not demonstrate immediate remorse, and had a more significant list of prior convictions. The court found that the sentence was not manifestly excessive, despite the appellant's arguments regarding mental impairment and trauma. The judge had appropriately balanced the need for general and specific deterrence with the appellant's mitigating factors. The application for leave to appeal was granted, but the appeal was ultimately dismissed.

No further orders were made.

Orders