R v El Hajje - [2003] VSCA 48

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 24 of 2002

THE QUEEN
	v.
FEDI EL HAJJE

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JUDGES:	CALLAWAY and BATT, JJ.A. and CUMMINS, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 April 2003
DATE OF JUDGMENT:	10 April 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 48

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CRIMINAL LAW – Sentencing – An armed robbery, numerous robberies and thefts, and like offences committed against “soft targets” and cars – Offender at time a 26-year-old drug addict with bad record – Guilty plea – Whether effective plea made – What s.5(2) of Sentencing Act 1991 required of judge – Whether rehabilitation undervalued – Neither 4 years' imprisonment for armed robbery nor a total effective sentence of 7 years with minimum of 5 years manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R.A. Elston	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr G.D. Lyon	Cameron Solicitors

CALLAWAY, J.A.:

I shall ask Batt, J.A. to deliver the first judgment.

BATT, J.A.:

The appellant, Fedi El Hajje, is aged 27 years, having been born on 4 July 1975. On 6 February 2002 he pleaded guilty in the County Court at Melbourne to thirteen counts of theft, ten counts of robbery, two counts of attempted robbery and one count each of attempted burglary, burglary, armed robbery, common assault and attempted theft. The maximum custodial penalties for those offences were imprisonment for the following terms: 25 years for armed robbery, 15 years for robbery, 10 years for each of burglary, attempted robbery and theft and 5 years for each of attempted burglary, attempted theft and common assault.

The appellant admitted 115 previous convictions, being 18 findings of guilt and 97 convictions, from 16 court appearances between 5 March 1992 and 13 March 2001. They include numerous convictions for robbery, some for burglary and very many for theft and other associated offences of dishonesty, as well as some convictions for assault and other minor offences of violence. The appellant has, in his previous convictions, received almost every sentencing disposition available to the courts, including on some nine occasions imprisonment, either in the initial disposition or ultimately as the result of some breach, the maximum term imposed on him appearing to be nine months.

On the same day, the County Court judge heard a plea in mitigation of penalty and on the following day, 7 February, he sentenced the applicant to various terms of imprisonment ranging from two days to four years on each of the 30 counts. The term of four years was imposed for armed robbery (count 11). Next in severity were terms of three years and six months imposed on counts 13, 14, 17, 18, 21 and 29, which were all counts of robbery, being cases where the appellant, in his Honour’s words, “specifically threatened violence”. (This is because, as I understand it, they were cases where the appellant had a hand inside his jacket or jumper and pointed it at the victim as though it were a firearm, or…

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 Hajje

Details

AGLC: R v El Hajje [2003] VSCA 48
Case: [2003] VSCA 48
Decision Date: 10 April 2003

CaseChat Overview and Summary

The case of R v El Hajje involved the defendant, El Hajje, who was convicted of multiple offences including armed robbery, theft, and similar crimes. The court was required to determine an appropriate sentence for these offences, considering the offender's background and circumstances at the time of the crimes. El Hajje, a 26-year-old drug addict, had a history of criminal activity, including numerous robberies and thefts targeting "soft targets" and vehicles. The legal issues before the court were whether an effective plea had been made by the offender and what the Sentencing Act 1991 required of the judge in this context. The court also considered whether the importance of rehabilitation had been undervalued and whether the proposed sentences were manifestly excessive.

The court examined the sentencing principles under section 5(2) of the Sentencing Act 1991, which requires judges to consider the principle of proportionality and the need for punishment and deterrence. The court found that the offender's plea was effective, and the proposed sentence of four years for the armed robbery and a total effective sentence of seven years, with a minimum of five years, was neither manifestly excessive nor did it undervalue the importance of rehabilitation. The court concluded that the sentence was appropriate given the nature and number of offences, the offender's history, and the need to balance punishment, deterrence, and rehabilitation.

Consequently, the court upheld the sentences as just and appropriate under the circumstances. The judge determined that the proposed sentences were in line with the statutory requirements and did not manifest any excessiveness. The court's decision was that the sentences were proportionate and took into account all relevant factors, including the offender's background and the seriousness of the crimes. The final orders of the court affirmed the sentences as determined by the lower court.

Orders