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R v Mourad

R v Mourad

Case [2008] VSCA 4 31 January 2008

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 341 of 2006

THE QUEEN
	v
AHMED MOURAD

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JUDGES:	VINCENT, NEAVE and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 January 2008
DATE OF JUDGMENT:	31 January 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 4

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SENTENCE – Re-offending while on parole – Parole not cancelled at the time of sentencing – Subsequent cancellation of parole – s 16(3B) Sentencing Act 1991 – Application of the totality principle – R v Alashkar and Tayar applied – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R A Elston SC	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr C B Boyce	Victoria Legal Aid

VINCENT JA:

I invite Redlich JA to deliver the first judgment.

REDLICH JA:

On 20 October 2006, the appellant was sentenced by a judge of the County Court to eight years and ten months' imprisonment, with a non-parole period of six years, for 15 counts of armed robbery, one count of attempted armed robbery, three counts of causing injury recklessly, one count of burglary and two counts of theft. All of the offences were committed between 10 December 2005 and 31 December 2005. As the appellant had been released from prison in October 2005, all of the offences were committed whilst the appellant was on parole. As a consequence of the appellant's sentence, the Parole Board cancelled his parole on 13 December 2006, the appellant then owing the Parole Board six months.

Having been granted leave to appeal, the appellant now appeals against his sentence on the ground that it is manifestly excessive and infringes the principle of totality. The appellant also relies upon the evidence of the cancellation of the parole order to show that he is now required to serve a sentence of nine years and four months, which, he submits, infringes the principle of totality.

A summary of the offences to which the appellant pleaded guilty is conveniently set out in the sentencing remarks of the learned sentencing judge.

Counts 1 and 2, on 10 December 2005, at the completion of a journey in a taxi, you produced a knife and robbed the taxi driver of $130 and his mobile telephone. In the course of a struggle, the driver was cut on both hands.
Counts 3 and 4, on 13 December 2005 with another man, you broke into a house in Sydney Road, Coburg North and stole two electric razors and two hand held telephones.
Count 5, on 14 December 2005, you produced a knife to the attendant in a service station in Coburg and robbed $700 from the cash register.
Count 6, on 16 December 2005, after being shown a gold necklace and bracelet set in a jewellery store in Brunswick, you stole the jewellery by running with it from the store.
Count 7, on 16 December 2005, you produced a knife to the salesman at the Better Bookshop in Swanston Street, Melbourne and robbed the store of $300. A…

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 Mourad

Details

AGLC: R v Mourad [2008] VSCA 4
Case: [2008] VSCA 4
Decision Date: 31 January 2008

CaseChat Overview and Summary

In the case of R v Mourad, the defendant, Mourad, was convicted of an offence while on parole for a previous conviction. The matter was before the court to determine an appropriate sentence for the new offence, taking into consideration the defendant's parole status at the time of the new offence and subsequent cancellation of parole. The legal issues before the court involved the application of section 16(3B) of the Sentencing Act 1991 and the principle of totality in sentencing. The court needed to decide whether the principle of totality should apply to the defendant's sentence for the new offence, despite the fact that parole was not cancelled at the time of sentencing.

The court examined the principle of totality in sentencing, which holds that a sentence for a current offence should be proportionate to the overall period of imprisonment the offender would serve if the sentences for all current and prior offences were to be served consecutively. The court applied the principles from R v Alashkar and R v Tayar, which established that the principle of totality could be applied even if parole had not been cancelled at the time of sentencing for the current offence. The court held that the principle of totality was relevant and should be applied in this case, as it ensured that the defendant's overall sentence reflected the totality of their offending behaviour.

The court concluded that the principle of totality was applicable to the defendant's sentence for the new offence. The defendant's parole was subsequently cancelled, but this did not affect the application of the principle of totality. The court determined that the sentence for the new offence should be proportionate to the overall period of imprisonment the defendant would serve, taking into account the time already served on parole and the sentence for the prior offence. The appeal was dismissed, and the court's decision stood.

The final orders of the court were that the defendant's sentence for the new offence should be determined in accordance with the principle of totality, taking into account the overall period of imprisonment the defendant would serve for all their offences. The court did not alter the sentence for the new offence but ensured that it was proportionate to the defendant's overall offending behaviour. The court's decision provided clarity on the application of the principle of totality in sentencing for offenders on parole who commit new offences.

Orders