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R v Hagi Ali & GM

R v Hagi Ali & GM

Case [2024] VSC 654 29 October 2024

Sentencing

Assist offender (re manslaughter)

Kidnapping

Criminal Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0127; S ECR 2023 0130

Between:
THE KING
-and-
ZAKARIA HAGI ALI	Accused
-and-
GM	Accused

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 October 2024
DATE OF SENTENCE:	29 October 2024
CASE MAY BE CITED AS:	R v Hagi Ali & GM
MEDIUM NEUTRAL CITATION:	[2024] VSC 654

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CRIMINAL LAW — Sentencing — Kidnapping — Assist offender (re manslaughter) — Several young males (aged 16 to 19) formed group after AA (aged 17), KM (aged 25) and others bearing weapons went to home of one in group — HA (aged 19) and GM (aged 17) part of group — Some in group found AA, kidnapped him, put him in boot of AA’s white car, assaulted him, had him call KM to locate him — In white car (with AA still in boot) and red car, group drove to KM’s location — White car ran down KM and crashed into yard of home unit — Red car arrived shortly after — Some from car or cars seriously assaulted KM, including at least one with weapons — KM killed by stab wound — Group of seven fled in red car, leaving crashed white car behind — Some in group disposed of clothing in nearby creek — Seven in group (including HA and GM) initially charged with kidnapping and murder — Following sentence indications before another judge, four (“principals”) pleaded guilty to manslaughter and sentenced: AS to four years’ gaol with non‑parole period of 33 months; YA and MB to three years’ youth justice centre (“YJC”) detention; and MI to two years’ YJC detention — Following sentence indications, HA and GM pleaded guilty to kidnapping and assisting principals after manslaughter — HA and GM complicit in kidnapping of AA, but not assaults — GM assisted principals by driving them away from scene of manslaughter — HA assisted principals discard clothing at creek nearby, and by failing to inform police — Both GM (now 19) and HA (now 21) pleaded guilty relatively early; are remorseful; have no prior or subsequent convictions; have done well on bail, including working and/or studying; have work or study to resume; have strong family support; have excellent prospects of rehabilitation; had murder charge hanging over head for long period — Delay deprived HA of possibility of YJC order — Parsimony — Parity — DPP concedes manslaughter more serious than kidnapping and assist offender combined — After HA and GM’s sentence indications, but before sentence, co‑accused AF sentenced by other judge on kidnapping to 402 days’ imprisonment (time served) — Whether GM to be sentenced as a child, pursuant to Children’s Court sentencing powers — General deterrence inapplicable purpose in sentencing GM as child offender — Unnecessary and potentially counter‑productive to return HA and GM to custody — HA sentenced to 203 days’ imprisonment (time served) on kidnapping, community correction order on assist offender — GM sentenced to 132 days’…

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 Hagi Ali & GM

Details

AGLC: R v Hagi Ali & GM [2024] VSC 654
Case: [2024] VSC 654
Decision Date: 29 October 2024

CaseChat Overview and Summary

The case of R v Hagi Ali and GM involved the sentencing of two individuals who had pleaded guilty to charges related to a violent incident. The appellants were part of a group that kidnapped and assaulted a 17-year-old, leading to the death of another individual. Hagi Ali (HA) and GM (then aged 17) were charged with kidnapping and assisting the principal offenders after the fact. The court had to determine the appropriate sentences for their respective roles in the crime.

The legal issues before the court included whether GM should be sentenced as a child offender, the appropriate sentence for HA and GM considering their early guilty pleas, remorse, lack of prior convictions, and their prospects for rehabilitation. Another issue was whether the sentences should reflect the greater severity of the manslaughter offence compared to the kidnapping and assisting offence, and whether there was a need for parity or parsimony in sentencing. The court also needed to consider the delay in sentencing and its impact on HA, as well as the sentencing of a co-accused who was sentenced before HA and GM.

The court found that GM should not be sentenced as a child because the purpose of general deterrence did not apply in his case. The court considered the principles of parsimony and parity in sentencing HA and GM, noting their early guilty pleas, remorse, and good prospects for rehabilitation. The court sentenced HA to 203 days’ imprisonment for kidnapping, with time served, and a community correction order for assisting the offenders after the fact. GM was sentenced to 132 days’ detention in a youth justice centre for kidnapping, with time served, and a youth supervision order for assisting the offenders after the fact. The court recognised that returning HA and GM to custody was unnecessary and potentially counter-productive.

In summary, the court emphasised the importance of considering the individual circumstances of the offenders, their early guilty pleas, and their prospects for rehabilitation in determining appropriate sentences. The court aimed to balance the need for punishment with the potential for rehabilitation, taking into account the delay in sentencing and the impact on the offenders.

Orders