R v Belhaj - [2006] VSCA 153

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 325 of 2005

THE QUEEN
	v.
ALI BELHAJ

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APPLICATION FOR LEAVE TO APPEAL

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JUDGE:	CALLAWAY, J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 April 2006
DATE OF JUDGMENT:	7 April 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 153

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Criminal law – Sentencing – Burglary and theft – Application for leave to appeal heard by single judge pursuant to s.582 of the Crimes Act 1958 – Same sentence on all counts despite substantial difference in amounts stolen – Broad-brush approach permissible – Mistake of fact in sentencing remarks – Not material – Severe sentence by comparison with sentences in other cases – Not manifestly excessive – R. v. Raad [2006] VSCA 67 applied - Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M.A. Gamble	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr J.E. McLoughlin	Slades & Parsons

CALLAWAY, J.A.:

The applicant, who is now aged 30, pleaded guilty in the County Court to two counts of burglary (counts 1 and 3) and two counts of theft (counts 2 and 4). The maximum custodial penalty for both those offences is 10 years' imprisonment. He admitted 31 previous convictions from five appearances in the Magistrates' Court between May 1993 and May 1998. They included ten charges of theft, two charges of burglary and charges of going equipped for stealing, being in possession of property suspected of being stolen or unlawfully obtained and handling stolen goods. Two of those court appearances had resulted in short immediate custodial sentences, but in 2001 he was sentenced to 14 months' imprisonment, with a non-parole period of six months, for offences of dishonesty, and further custodial sentences were imposed in 2004.

After hearing a plea for leniency on his behalf, the learned judge sentenced the applicant to three years' imprisonment on each count. His Honour directed that 12 months of the sentence imposed on count 3 be served cumulatively upon the sentence imposed on count 1, making a total effective sentence of four years' imprisonment. A non-parole period of two years was fixed and a declaration made regarding three days' pre-sentence detention. The applicant seeks leave to appeal against sentence on the following grounds:

"1.The sentences imposed on the individual counts, the total effective sentence and the non-parole period imposed in respect of that sentence are manifestly excessive.
2.The individual sentences imposed on counts 3 and 4 are disproportionate to the sentences imposed on counts 1 and 2, when regard is had to the disparate value of property stolen.
3.The learned sentencing judge failed to give sufficient weight to delay in the prosecution of the matter."

The circumstances of the offending sufficiently appear, for present purposes, from the sentencing remarks. As the judge explained, there were two incidents, one in the early hours of 7th March and the other in the early hours of 29th March 2001. On the first occasion the applicant broke into a store and stole about…

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 R v Belhaj

Details

AGLC: R v Belhaj [2006] VSCA 153
Case: [2006] VSCA 153
Decision Date: 7 April 2006

CaseChat Overview and Summary

The case of R v Belhaj involved the defendant, Belhaj, who was convicted of multiple counts of burglary and theft. The defendant appealed against the sentence imposed by the County Court, which was a total of 21 months imprisonment with a non-parole period of 14 months. The Victorian Court of Appeal, exercising its jurisdiction under section 582 of the Crimes Act 1958, heard an application for leave to appeal the sentence. The primary issues before the court were whether the sentence imposed was excessive, whether the sentencing judge had made a mistake of fact, and whether the sentence was manifestly disproportionate when compared to similar cases.

The court considered whether the sentencing judge's approach was a broad-brush one, treating the offences as a single crime for sentencing purposes. The court held that such an approach was permissible as long as it was not unjust to any of the individual offences. The court also found that any mistake of fact in the sentencing remarks did not impact the overall fairness of the sentence. Furthermore, when comparing the sentence with those in other cases, the court determined that it was not manifestly excessive. The decision in R v Raad was applied, reinforcing that the court would not intervene lightly in sentencing matters.

In light of the above considerations, the court refused the application for leave to appeal. The reasoning was that the sentence, while severe, was not so disproportionate as to warrant appellate intervention. The court concluded that the sentence was within the range of penalties that could be appropriately imposed for the offences committed. The final orders of the court were that the application for leave to appeal was dismissed, and the original sentence was upheld.

Orders