R v Ahmed - [2005] VSCA 279

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 357 of 2004

THE QUEEN
	v.
FAYSAL AHMED

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JUDGES:	CHARLES, CALLAWAY and ASHLEY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 November 2005
DATE OF JUDGMENT:	17 November 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 279	1^st Revision 30 November 2005

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Criminal law – Sentence – Armed robbery (3 counts) and sundry offences – Head sentence of 6 years, non-parole period of 3 ½ years fixed – Evidence not called at sentence – Receipt of fresh evidence of prisoner’s delusional disorder – Incarceration more burdensome for prisoner – Non-parole period reduced to 3 years – Eliasen (1991) 53 A.Crim.R. 391

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.R.C. Southey	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr C.B. Boyce	Ellinghaus & Lindner

CHARLES, J.A.:

On 15 December 2004 the appellant pleaded guilty in the County Court at Melbourne to a presentment alleging three counts of armed robbery, one count of robbery, one count of burglary, two counts of theft, three counts of obtaining property by deception, one count of attempting to obtain property by deception and one count of recklessly causing injury. He admitted 18 prior convictions and four findings of guilt from seven court appearances between September 1997 and November 2001, including prior findings of guilt or convictions for theft, attempted theft, attempted robbery, handling stolen goods, intentionally causing injury, unlawful assault, attempting to obtain property by deception and breaching suspended sentences. The appellant, who was born on 19 December 1979, was aged 23 during the period of offending, which was from 22 November to 3 December 2003.

On 17 December 2004 the judge sentenced the appellant to a total effective sentence of six years' imprisonment, and fixed a non-parole period of three years and six months. Some 372 days of this sentence had then already been served. Of the individual sentences, it is sufficient to say that the judge imposed sentences of three years in respect of each count of armed robbery, two years in relation to the count of robbery, 12 months in respect of the counts of theft and recklessly causing injury, nine months in respect of the count of burglary, and six months' imprisonment respectively in the case of each count of obtaining property by deception. Cumulation of 12 months was ordered in respect of two of the counts of armed robbery, and six months in the case of the count of robbery and one count of theft. Leave to appeal under s.582 of the Crimes Act was granted by a judge of this Court on 12 August 2005.

The appellant originally sought to appeal on the ground that the sentence imposed was manifestly excessive. This ground is not now pursued. Instead, the single ground of the appeal is that in light of the fresh evidence of the appellant's mental disorder, the sentencing discretion is reopened and the appellant ought now be re-sentenced by this Court.

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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

AGLC: R v Ahmed [2005] VSCA 279
Case: [2005] VSCA 279
Decision Date: 17 November 2005

CaseChat Overview and Summary

In the matter of R v Ahmed, the defendant faced sentencing for multiple counts of armed robbery and other related offences. The Supreme Court of Australia was tasked with determining the appropriate sentence for the defendant, who had pleaded guilty to these serious charges. The prosecution sought a custodial sentence, while the defence requested a more lenient outcome, taking into account the defendant's personal circumstances and mental health.

The legal issues before the court involved the appropriate balance between the severity of the crimes and the defendant's personal circumstances. Specifically, the court needed to determine the length of the head sentence and the non-parole period, as well as the impact of the defendant's mental health on the sentence. The court also had to consider whether the receipt of fresh evidence, which suggested that the defendant suffered from a delusional disorder, warranted a reduction in the non-parole period.

In delivering the judgment, the court acknowledged the severity of the defendant's crimes, but also took into account the mitigating factors, including the defendant's mental health. The court found that the incarceration would be more burdensome for the defendant due to his delusional disorder. As a result, the non-parole period was reduced from 3 ½ years to 3 years. The court relied on the precedent set in Eliasen (1991) 53 A.Crim.R. 391 to justify the reduction in the non-parole period based on the defendant's mental health. The final orders of the court included a head sentence of 6 years imprisonment with a non-parole period of 3 years.

Orders