R v Moussellmani - [2022] QCA 155

SUPREME COURT OF QUEENSLAND

CITATION:

R v Moussellmani [2022] QCA 155

PARTIES:

R
v
MOUSSELLMANI, Kamel
(applicant)

FILE NO/S:

CA No 46 of 2022
DC No 505 of 2020
DC No 150 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport – Date of Sentence: 24 February 2022 (McGinness DCJ)

DELIVERED ON:

23 August 2022

DELIVERED AT:

Brisbane

HEARING DATE:

29 July 2022

JUDGES:

Mullins P and McMurdo JA and Davis J

ORDER:

Application dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant pleaded guilty to three counts of fraud – where the charges alleged the applicant dishonestly induced payments of money – whether any benefit received by the applicant was a relevant consideration in sentencing – whether the sentencing judge properly assessed and took into account any benefit received by the applicant – where the applicant had been convicted and sentenced on related summary charges – whether the sentencing judge had properly taken into account those sentences

Criminal Code (Qld), s 408C, s 427, s 428, s 429
Criminal Law Amendment Act 1997 (Qld), s 66
Penalties and Sentences Act1992 (Qld), s 144(5)
Queensland Building and Construction Commission Act1991 (Qld)

COUNSEL:

A J Kimmins for the applicant
C W Wallis for the respondent

SOLICITORS:

Moloney MacCallum Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MULLINS P: I agree with Davis J.
McMURDO JA: I agree with Davis J.
DAVIS J: The applicant seeks leave to appeal sentences imposed upon him on 24 February 2022 in the District Court at Southport.
The applicant pleaded guilty to three offences on two indictments:
That on divers dates between the second day of January, 2019 and the twenty-third day of January, 2019 at Gold Coast or elsewhere in the State of Queensland, KAMEL MOUSSELMANI dishonestly induced SUSAN MAREE HOWELL to deliver bank credits to him.
And the property was of a value of at least $100,000. (the first count)
That on divers dates between the fourteeth day of May, 2019 and the second day of June, 2019 at Gold Coast or elsewhere in the State of Queensland, KAMEL MOUSSELMANI dishonestly induced JOHANNES MEINTJES to deliver bank credits to him. (the second count)
That on divers dates between the seventeenth day of May, 2019 and the thirty-first day of May, 2019 at Gold Coast or elsewhere in the State of Queensland, KAMEL MOUSSELMANI dishonestly induced WEI ZHANG to deliver bank credits to him.
And the property was of a value of more than $30,000. (the third count)
The charges arose from a scheme conducted by the applicant where he provided building services whilst not being registered. He identified registered builders and then, using their Queensland Building and Construction Commission (QBCC) licence number, pretended to be a registered builder. Under that pretence, he entered into building contracts with three homeowners.
By the first count, the…

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 Moussellmani

Details

AGLC: R v Moussellmani [2022] QCA 155
Case: [2022] QCA 155
Decision Date: 23 August 2022

CaseChat Overview and Summary

The case of R v Moussellmani involved the applicant, who had pleaded guilty to three counts of fraud. The applicant was convicted of dishonestly inducing payments of money. The applicant appealed against his sentence, arguing that the sentencing judge had acted on the wrong principle by considering the benefit received by the applicant as a relevant factor. The applicant also argued that the sentencing judge had not properly taken into account sentences imposed on related summary charges.

The legal issues before the court were whether the sentencing judge properly assessed and took into account any benefit received by the applicant and whether the sentencing judge had properly taken into account sentences imposed on related summary charges. The court had to determine if the sentences imposed were within the range of a proper exercise of discretion, taking into account aspects of totality arising from the convictions and sentences imposed on the related summary offences.

In dismissing the application, the court found that the sentences imposed were within the range of a proper exercise of discretion, taking into account aspects of totality arising from the convictions and sentences imposed on the related summary offences. The court found no error in the sentencing judge's consideration of the benefit received by the applicant or in the taking into account of sentences imposed on related summary charges. The court held that there was no substance in any of the arguments raised in support of the ground of appeal.

ORDERS:
The application for leave to appeal was dismissed.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The sentences imposed are within the range of a proper exercise of discretion, taking into account aspects of totality arising from the convictions and sentences imposed on the related summary offences. No error is shown.Conclusions There is no substance in any of the arguments raised in support of the ground of appeal. I would dismiss the application for leave to appeal.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Moussellmani [2022] QCA 155
PARTIES:	R v MOUSSELLMANI, Kamel (applicant)
FILE NO/S:	CA No 46 of 2022 DC No 505 of 2020 DC No 150 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport – Date of Sentence: 24 February 2022 (McGinness DCJ)
DELIVERED ON:	23 August 2022
DELIVERED AT:	Brisbane
HEARING DATE:	29 July 2022
JUDGES:	Mullins P and McMurdo JA and Davis J
ORDER:	Application dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant pleaded guilty to three counts of fraud – where the charges alleged the applicant dishonestly induced payments of money – whether any benefit received by the applicant was a relevant consideration in sentencing – whether the sentencing judge properly assessed and took into account any benefit received by the applicant – where the applicant had been convicted and sentenced on related summary charges – whether the sentencing judge had properly taken into account those sentences Criminal Code (Qld), s 408C, s 427, s 428, s 429 Criminal Law Amendment Act 1997 (Qld), s 66 Penalties and Sentences Act1992 (Qld), s 144(5) Queensland Building and Construction Commission Act1991 (Qld)
COUNSEL:	A J Kimmins for the applicant C W Wallis for the respondent
SOLICITORS:	Moloney MacCallum Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent