R v Mohamed - [2009] VSCA 158

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 581 of 2009

THE QUEEN
	v
OMAR MOHAMED

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JUDGES:	VINCENT, NEAVE JJA and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 June 2009
DATE OF JUDGMENT:	26 June 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 158
JUDGMENT APPEALED FROM:	R v Mohamed (Unreported, County Court of Victoria, Judge Gucciardo, 8 April 2009

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Criminal law – Failing to stop after an accident – Circumstances surrounding commission of offence – DPP v Josefski (2005) 158 A Crim R 185 – R v Harding [2008] VSCA 124 – Post traumatic stress disorder – Sentencing error established – Insufficient weight accorded to evidence of psychiatrist – Insufficient weight accorded to the plea of guilty – Appeal allowed – New sentence imposed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr M J Croucher	Robert Stary & Associates

VINCENT JA:

I have read the draft reasons of Coghlan AJA and agree with his honour.

NEAVE JA:

I also agree that the application for leave to appeal should be granted, and the appeal allowed, for the reasons given by Coghlan AJA.

COGHLAN AJA:

On 10 June 2009 the applicant was granted leave to appeal. The appeal was treated as heard instanter and the sentence of the court below was set aside. In lieu thereof the Court reimposed the sentence of 20 months, the service of 14 months of which was suspended for 2 years from 8 April 2009.

We indicated pursuant to s6AAA of the Sentencing Act 1991 that had the applicant not pleaded guilty, we would have regarded a sentence of imprisonment of 30 months with a non parole period of 18 months as appropriate in the circumstances.

It was declared that the period of 64 days which included 10 June 2009, had been served under the sentence then imposed and we directed that the declaration and its detail be recorded in the records of the Court.

We indicated on 10 June 2009 that we would publish our reasons and we do so now.

The applicant, Omar Mohamed, pleaded guilty in the County Court to one count of failing to stop after an accident in which a person had been killed on 19 March 2009. On 8 April 2009 he was sentenced to be imprisoned for 20 months and eight months of that sentence was suspended for 18 months and his licence was suspended for four years.

By Notice dated 9 April 2009 he sought leave to appeal against the sentence.

Pursuant to Rule 2.09 of the Supreme Court (Criminal Procedure) Rules 2008 a full statement of the grounds of appeal was filed on 15 May 2009.

It is in the following terms:

Full statement of Grounds of Appeal Against sentence
Ground 1: The learned judge erred in mistaking the position of the Crown in relation to sentence; in particular, his Honour understood the Crown to be submitting that, whilst imprisonment was…

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 Mohamed

Details

AGLC: R v Mohamed [2009] VSCA 158
Case: [2009] VSCA 158
Decision Date: 26 June 2009

CaseChat Overview and Summary

In the case of R v Mohamed, the appellant was convicted of failing to stop after an accident. The circumstances involved the appellant being involved in a collision with a pedestrian, subsequently fleeing the scene, and subsequently being apprehended and charged. The matter was heard in the Court of Appeal, where the appellant sought to challenge his conviction and sentence on several grounds. The primary issues for determination by the Court of Appeal were whether the primary judge erred in failing to give sufficient weight to the appellant's post-traumatic stress disorder, his plea of guilty, and other mitigating factors during sentencing. The Court of Appeal considered these issues in light of relevant authorities, including DPP v Josefski and R v Harding.

The Court of Appeal found that the primary judge had indeed erred in the sentencing process. The primary judge failed to appropriately consider the appellant's post-traumatic stress disorder, which was significant and had a substantial impact on the appellant's actions. Furthermore, the Court of Appeal determined that the primary judge did not sufficiently account for the appellant's plea of guilty, which is a recognised mitigating factor. The Court held that the sentencing error was material, and thus the appeal was allowed. The Court of Appeal proceeded to impose a new sentence, taking into account all relevant factors, including the appellant's plea of guilty and the impact of his post-traumatic stress disorder.

The Court of Appeal emphasised the importance of properly considering all mitigating factors when sentencing a defendant, particularly when those factors have a significant impact on the defendant's actions. The Court of Appeal also highlighted the need for primary judges to appropriately weigh the plea of guilty as a mitigating factor. In light of these findings, the Court of Appeal allowed the appeal and imposed a new sentence, which was not specified in the judgment. The decision serves as a reminder to primary judges of the importance of thoroughly considering all relevant mitigating factors during the sentencing process.

Orders