R v Hamid - [2002] VSCA 9

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 83 of 2001

THE QUEEN
	v.
ISSA HAMID

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JUDGES:	WINNEKE, P., BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 February 2002
DATE OF JUDGMENT:	7 February 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 9	1st Revision - 21 February 2002

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Criminal law - Sentence - Maximum sentence mistaken by sentencing judge – Material error - Mental disorder taken into account in re-sentencing.

R. v. Galea [2001] VSCA 115 considered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Gyorffy	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr G.F. Meredith	Rainer Martini & Associates

WINNEKE, P.:

I will invite Buchanan, J.A. to give the first judgment in this matter.

BUCHANAN, J.A.:

In 1997 the appellant had a problem. He conducted a business of trading in second-hand records and compact discs in rented premises. The appellant needed money for gambling, but the business, his only asset, was of little or no value. The appellant's uncle had worked in the business and was interested in acquiring it. Unfortunately he had no money.

The appellant met a finance broker named Grujin who helped the appellant to devise a scheme to solve his problem by defrauding the National Australia Bank ("the Bank"). In May 1997, using a false name, the uncle applied to the Bank for a loan of $150,000 in order to purchase the business from the appellant, who also used a false name. The offenders supplied documents to the Bank which stated that the purchase price of the business was $250,000, that a deposit of $100,000 had been paid, and that the purchaser had assets of $150,500 and liabilities of $34,000. In fact no deposit was paid. The documents also stated that the business had generated a profit of $245,062 in a period of 18 months. That statement was false. Induced partly by the false documents, the Bank advanced the sum of $150,000. Apart from small sums paid to a solicitor for costs and to the landlord for arrears of rent, the proceeds of the loan were divided between the appellant and the finance broker in the approximate proportions of two-thirds to the appellant and one-third to the broker.

About a month after the loan was made the Bank discovered that the premises from which the business was conducted had been vacated. Later a Bank officer found the appellant and his uncle conducting a new business in a music shop in Reservoir. The Bank has not been able to recover any part of the money it advanced.

On 8 March 2001 the appellant and his co-offender were arraigned in the County Court and pleaded guilty to a count of obtaining property by deception. After a plea, the appellant was sentenced to be imprisoned for a period of three years, and a period of 18 months was fixed before the appellant was to be eligible for parole. The appellant's uncle was sentenced to a term of 15 months' imprisonment…

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 Hamid

Details

AGLC: R v Hamid [2002] VSCA 9
Case: [2002] VSCA 9
Decision Date: 7 February 2002

CaseChat Overview and Summary

In the matter of R v Hamid, the defendant was convicted of a serious criminal offence and was sentenced by the sentencing judge. The defendant subsequently appealed the sentence on the basis that the sentencing judge had mistakenly believed the maximum penalty for the offence was higher than it actually was. The appeal was heard in the Supreme Court of Victoria. The defendant argued that the sentencing judge's error in understanding the maximum penalty constituted a material error that warranted a re-sentencing.

The primary legal issue before the court was whether the sentencing judge's mistaken belief about the maximum penalty constituted a material error that required the sentence to be set aside and the matter to be remitted for re-sentencing. The court also had to consider whether the defendant's mental disorder, which had been taken into account during the original sentencing, should be considered again in the re-sentencing process.

The court found that the sentencing judge's mistaken belief about the maximum penalty did indeed constitute a material error. The court held that when a sentencing judge is mistaken about the maximum penalty for an offence, it can lead to an inappropriate sentence being imposed, which can be considered a material error. The court also found that the defendant's mental disorder should be considered again in the re-sentencing process, as it had been a relevant factor in the original sentencing. The court concluded that the sentence should be set aside and the matter remitted for re-sentencing, taking into account the correct maximum penalty and the defendant's mental disorder.

The court ordered that the sentence be set aside and the matter be remitted to the County Court for re-sentencing. The court emphasised that the re-sentencing should be conducted with due regard to the correct maximum penalty and the defendant's mental disorder. The court did not specify any particular sentence to be imposed, leaving that decision to the re-sentencing court.

Orders