R v Ghareeb - [2003] VSCA 111

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 35 of 2002

THE QUEEN
	v.
WALID GHAREEB

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JUDGES:	VINCENT and EAMES, JJ.A. and ASHLEY, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 August 2003
DATE OF JUDGMENT:	7 August 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 111	1^st Revision – 21 August 2003

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CATCHWORDS:

Criminal law - Sentence - Armed robbery - Youth - Whether manifestly excessive - Applicant 20 years old at time of offence - Parity - 7 years' imprisonment with non-parole period 4 years' - Co-offender sentenced to 7 years' with 4 years 6 months non-parole period - Co-offender prime mover and had prior conviction for armed robbery - Applicant a first offender - Appeal allowed - Sentence of 5 years with 3 years non-parole period substituted - Crimes Act s.75A.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs S. Pullen	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr O.P. Holdenson QC	Clarebrough Pica

VINCENT, J.A.:

I invite Eames, J.A. to deliver the first judgment.

EAMES, J.A.:

The applicant pleaded guilty in the County Court on 27 February 2002 to one count of theft under s.74 of the Crimes Act 1958 ("the Act"), which offence concerned the theft of some car registration number plates. He also pleaded guilty to one count of armed robbery under s.75A of the Act. On the second count the applicant was jointly presented with Ali Maksoud and Mohommed Hoblos. Count 1 carried a maximum sentence of imprisonment of 10 years and count 2 a maximum sentence of imprisonment of 25 years.

On the first count he was sentenced to be imprisoned for one month and on the second count he was sentenced to be imprisoned for 7 years. A non-parole period of four years was fixed. The applicant seeks leave to appeal against sentence. Although the notice of appeal related to both counts it was only with respect to count 2 that argument was addressed to the Court. An application for leave was rejected by a judge of the Court on 23 August 2002 pursuant to s.582 of the Crimes Act 1958 and the applicant has elected to make application for leave to appeal before a court of three judges.

There are three grounds of appeal, first, that the sentence imposed was manifestly excessive; second, that the learned sentencing judge erred in failing to give sufficient weight to principles of parity of sentencing and, third, that the judge erred in failing to give sufficient weight to the youth of the applicant. Counsel referred to R. v. Mills[1]. .
[1][1998] 4 V.R. 235 at 241. See, too, R. v. Giles [1999] VSCA 208 at [20] and R. v. Tran (2002) 4 V.R. 457 at [14]

It is convenient to take the first and third grounds together.

The offence was committed in the early hours of 29 June 2001. The applicant, who was a resident of Sydney, had driven with Hoblos to Melbourne in the applicant's motor car about five…

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 Ghareeb

Details

AGLC: R v Ghareeb [2003] VSCA 111
Case: [2003] VSCA 111
Decision Date: 7 August 2003

CaseChat Overview and Summary

The appellant, Ghareeb, was convicted of armed robbery and sentenced to 5 years' imprisonment with a non-parole period of 3 years. He appealed against the sentence on the basis that it was manifestly excessive. The respondent, the Crown, opposed the appeal. The nature of the dispute was the appropriate level of punishment for the crime committed by Ghareeb.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive. The court considered the principles of parity and proportionality in sentencing, as well as the mitigating factors presented by Ghareeb, including his age at the time of the offence and his status as a first offender. The court also examined the sentence imposed on the co-offender, who was the prime mover of the crime and had a prior conviction for armed robbery.

The court found that the sentence imposed on Ghareeb was manifestly excessive. The court noted that the co-offender, who played a more significant role in the crime and had a prior conviction, was sentenced to 7 years' imprisonment with a non-parole period of 4 years and 6 months. The court considered this sentence to be appropriate, given the co-offender's role and criminal history. Ghareeb, on the other hand, was a first offender and significantly younger at the time of the offence. The court found that the sentence imposed on Ghareeb was disproportionate and did not reflect the mitigating factors present in his case. The appeal was therefore allowed, and the sentence was substituted with 5 years' imprisonment with a non-parole period of 3 years.

The court's decision highlights the importance of considering the individual circumstances of each offender when imposing a sentence. The court found that the sentence imposed on Ghareeb was manifestly excessive and did not reflect the mitigating factors present in his case. The court's decision also emphasises the need for parity in sentencing, particularly when co-offenders are involved. The final orders of the court were that Ghareeb's sentence of 5 years with 3 years non-parole period be substituted for the original sentence.

Orders