R v El-Hag - [2007] VSCA 179

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 366 of 2006

THE QUEEN
	v
PATRICK EL-HAG

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JUDGES:	CHERNOV, VINCENT and KELLAM JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 August 2007
DATE OF JUDGMENT:	27 August 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 179

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Criminal law – Sentencing – Attempted armed robbery – Recklessly causing injury – Whether appropriate weight given to early plea of guilty – Whether factual error made by judge had material impact on sentences imposed – Relevant criminal history – Manifest excess – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M A Gamble, SC	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr G A Georgiou	Victoria Legal Aid

CHERNOV JA:

I shall ask Vincent JA to deliver the first judgment.

VINCENT JA:

The appellant pleaded guilty in the County Court sitting at Melbourne, on 16 November 2006, to one count of attempted armed robbery (count 1) and one count of recklessly causing injury (count 2).

He admitted 17 prior convictions arising from five court appearances between October 2000 and July 2003. Notably for present purposes, they included seven counts of armed robbery, one count of attempted armed robbery, one count of assault in company, and one count of causing serious injury. There were also various drug-related and driving offences.

After hearing a plea in mitigation of penalty, the sentencing judge, on 20 November 2006, imposed the following sentences:
On count 1 - four years' imprisonment;
On count 2 - two years' imprisonment.
His Honour directed that one year of the sentence imposed on count 2 be served cumulatively with the sentence imposed on count 1. This created a total effective sentence of five years' imprisonment, in respect of which a non-parole period of two years and nine months was fixed.

Having been granted leave to do so, on 6 June 2007, the appellant seeks to overturn the sentences imposed upon him on the six grounds set out in his Full Statement of Grounds that:

1.The learned sentencing judge erred in that he sentenced me on the basis that I had not pleaded guilty at the earliest opportunity.
2.The learned sentencing judge erred in that he sentenced me on the basis that I had armed myself with a knife with the intention of committing an armed robbery.
3.The learned sentencing judge denied me procedural fairness in that counsel on my behalf had submitted that I had armed myself with a knife because of problems I had with people in the drug culture and for self protection and this was not challenged and I was not asked about why [I] had the knife when I gave evidence.
4.The learned sentencing judge erred in that he found as an aggravating factor that I had attempted to stab the victim with the knife. I was not charged with attempting to inflict serious injury and the evidence did not support a finding that I had attempted to stab the victim.
5.That the learned sentencing…

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 El-Hag

Details

AGLC: R v El-Hag [2007] VSCA 179
Case: [2007] VSCA 179
Decision Date: 27 August 2007

CaseChat Overview and Summary

The case of R v El-Hag was heard in the appellate division of the Supreme Court of New South Wales. The defendant, El-Hag, was convicted of attempted armed robbery and recklessly causing injury. El-Hag appealed the sentences imposed, arguing that the trial judge had not given appropriate weight to his early plea of guilty and had made a factual error that had a material impact on the sentences imposed. The appeal also contended that the trial judge's consideration of El-Hag's criminal history was flawed and that the overall sentence was manifestly excessive.

The legal issues before the court included whether the trial judge had correctly assessed the mitigating factor of an early guilty plea, whether any factual errors made by the trial judge had a material impact on the sentences imposed, and whether the overall sentence was manifestly excessive given the relevant criminal history. The court had to determine whether the appeal had merit in the context of the sentencing principles and the facts of the case.

The court found that the trial judge had appropriately considered the mitigating factor of the early guilty plea and that any factual errors made by the trial judge did not have a material impact on the sentences imposed. The court held that the trial judge's consideration of El-Hag's criminal history was not flawed and that the overall sentence was not manifestly excessive. The appeal was dismissed as the sentences imposed were considered fair and appropriate in light of the circumstances and the sentencing principles.

Orders