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R v Samia

R v Samia

Case [2009] VSCA 5 6 February 2009

Sentencing

Obtaining Financial Advantage by Deception

Obtaining Property by Deception

Appeal

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 920 of 2007

THE QUEEN
	v
ZOUL FAKAR SAMIA

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JUDGES:	NETTLE and DODDS-STREETON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 February 2009
DATE OF JUDGMENT:	6 February 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 5

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CRIMINAL LAW – Sentencing – Obtaining financial advantage by deception and obtaining property by deception – Two presentments – Numerous counts – Sentenced to a term of 5 years and 10 months’ imprisonment with a non-parole period of three years and nine months – Whether judge gave sufficient regard to cumulation, proportionality, totality and plea of guilty – Appeal allowed in part – Appellant re-sentenced to five years and eight months’ imprisonment with a non-parole period of three years and six months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr S M Cooper	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Mr M D Stanton	Victoria Legal Aid

NETTLE JA:

This is an appeal with leave against a total effective sentence of five years and 10 months’ imprisonment, with a non-parole period of three years and nine months, imposed on the appellant on pleading guilty to thirty seven counts preferred by way of two presentments as follows:

a) By presentment S01635492.2 (‘the first presentment’), 23 offences, committed over a five year and two month period between 7 July 1999 and 27 September 2004, of either obtaining or attempting to obtain financial advantage by deception or obtaining property by deception and using a false document. The deceptions were variously perpetrated in the appellant’s own name and also through the use of aliases, and consisted in the appellant making false representations as to his identity, address, employment, and financial position, mostly to banks and telephone companies. The total loss to the various entities involved was $91,158.[1]

b) By presentment W00249974 (‘the second presentment’), 14 offences, committed in the two month period between 29 November 2006 and 31 January 2007, of either obtaining financial advantage by deception or obtaining property by deception. Those offences included the appellant handling a stolen credit card and using it to make various purchases, providing credit card details of other persons to make or attempt to make purchases, and being the passenger in a stolen vehicle driven by a co-offender who was also involved in the commission of a number of the other offences on the presentment. The total loss incurred by the victims involved was $9,835.

[1]Unless otherwise stated, paragraph references are to the judge’s sentencing remarks.

On the first presentment, the judge sentenced the appellant to a total of 46 months’ imprisonment. A sentence of 12 month’s imprisonment imposed on count 8 was made the base sentence. Two months on each of the sentences imposed on counts 1, 2, 3, 4, 6, 9, 10, 12, 13, 15, 16, 18, 20, 21, 22 and one month each of the sentences imposed on counts 5, 11, 17, 23 were ordered to be served cumulatively on the sentence imposed on count…

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 Samia

Details

AGLC: R v Samia [2009] VSCA 5
Case: [2009] VSCA 5
Decision Date: 6 February 2009

CaseChat Overview and Summary

The appeal before the court involved the appellant, Samia, who had been convicted of multiple counts of obtaining financial advantage by deception and obtaining property by deception. The case originated from the sentencing phase in the County Court, where Samia was sentenced to a term of 5 years and 10 months’ imprisonment with a non-parole period of three years and nine months. The appeal contested the appropriateness of the sentence, arguing that the judge did not sufficiently consider the principles of cumulation, proportionality, and totality, as well as the appellant's plea of guilty.

The legal issues before the court centred on whether the original sentence imposed was excessive or manifestly inadequate, taking into account the principles of sentencing for serious criminal conduct. The appellant's counsel argued that the sentence failed to appropriately balance the need for punishment and deterrence against the principles of proportionality and totality, particularly given the extensive nature of the offending and the appellant's early guilty plea. The prosecution maintained that the original sentence was justified, considering the gravity of the offences and the appellant’s role in the criminal enterprise.

In determining the appeal, the court carefully reviewed the sentencing principles and the judge's application of these principles. The court found that while the judge acknowledged the appellant's early guilty plea, there was insufficient consideration given to the cumulative effect of the offences and the totality of the appellant's criminal conduct. The court held that the sentence was excessive in light of the principles of proportionality and totality. Accordingly, the appeal was allowed in part, and the appellant was re-sentenced to a term of five years and eight months’ imprisonment with a non-parole period of three years and six months. This re-sentencing reflected a more appropriate balance of the relevant sentencing considerations.

Orders