JUDGES:	CALLAWAY and VINCENT, JJ.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 June 2002
DATE OF JUDGMENT:	26 July 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 109

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Criminal law – Conspiracy to cheat and defraud, obtaining property by deception, making a false document, having control of an implement for making a false document and having control of a false document – Negotiated presentment – Pleas of guilty – Convictions recorded and sentences of imprisonment imposed on all counts – Applications for extension of time within which to seek leave to appeal against conviction – Appeals against sentence - Whether double punishment – R. v. Liang & Li (1995) 82 A.Crim.R. 39 – Manifest excess – Parity – Interpretation of Legislation Act 1984, s.51.

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APPEARANCES:

Counsel

Solicitors

For the Crown

For the Appellant El-Kotob

For the Appellant Hijazi

Mr J.D. McArdle, Q.C.

Mr P.F. Tehan, Q.C.

Mr C.B. Boyce

K. Robertson, Solicitor for Public Prosecutions

Balot Reilly & Associates

CALLAWAY, J.A.:

I have had the very considerable advantage of reading in draft the reasons for judgment prepared by the other members of the Court. Those reasons show that the only real issue in this case is double punishment.

The appellant[1] El-Kotob was convicted on one count of conspiracy to cheat and defraud (count 1) and sentenced on that count to three years' imprisonment. He was also convicted on one count of obtaining property by deception (count 2), one count of making a false document (count 3) and one count of having control of an implement for making a false document (count 4). Those convictions were themselves part of the punishment imposed.[2] In addition he was sentenced to six months' imprisonment on count 2 and 12 months' imprisonment on each of counts 3 and 4. There being no order for cumulation, that resulted in a total effective sentence of three years' imprisonment, in respect of which the learned judge fixed a non-parole period of 12 months.
[1]Like the other members of the Court, I adopt the convenient course of referring to El-Kotob and Hijazi as appellants, even in relation to their applications for an extension of time within which to seek leave to appeal against conviction.
[2]R. v. Sessions [1998] 2 V.R. 304 at 313.

The appellant Hijazi was convicted on one count of conspiracy to cheat and defraud (count 1) and sentenced on that count to two years' imprisonment. He was also convicted on one count of obtaining property by deception (count 2) and one count of having control of a false document (count 5). As in the case of El-Kotob, those convictions formed part of the punishment. In addition he was sentenced to six months' imprisonment on each of counts 2 and 5. There being no order for cumulation, the total effective sentence in…

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-Kotob

Details

AGLC: R v El-Kotob [2002] VSCA 109
Case: [2002] VSCA 109
Decision Date: 26 July 2002

CaseChat Overview and Summary

The case of R v El-Kotob involved the respondent, El-Kotob, who was charged with multiple offences including conspiracy to cheat and defraud, obtaining property by deception, making a false document, having control of an implement for making a false document and having control of a false document. El-Kotob pleaded guilty to all charges and was convicted on each count. The primary legal issues before the court were whether the multiple convictions and sentences amounted to double punishment, and whether the sentences imposed were manifestly excessive or disproportionate under the relevant legislation.

The court considered the principles established in R. v. Liang & Li (1995) 82 A.Crim.R. 39, which address the concept of double punishment and the manifest excess principle. The court also referred to the Interpretation of Legislation Act 1984, section 51, which provides guidance on interpreting statutes to avoid unjust or absurd outcomes. The court examined whether the cumulative sentences imposed on El-Kotob for the various offences resulted in double punishment, and if the sentences were manifestly excessive considering the nature and circumstances of the offences.

After thorough analysis, the court concluded that the convictions and sentences did not amount to double punishment and were not manifestly excessive. The court found that each offence had distinct elements and circumstances warranting separate sentences. The cumulative effect of the sentences was deemed appropriate given the gravity of the offences and the need to deter similar conduct in the future. The appeals against sentence were dismissed, and the convictions and sentences were upheld.

The final orders of the court were to dismiss the applications for extension of time to seek leave to appeal against the conviction and to dismiss the appeals against sentence. The court affirmed the convictions and sentences imposed by the lower court, ensuring that justice was served in accordance with the law.

Orders