Said Abdirahman v The Queen - [2020] VSCA 87

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0048

SAID ABDIRAHMAN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 March 2020
DATE OF JUDGMENT:	15 April 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 87
JUDGMENT APPEALED FROM:	[2018] VCC 1601 (Judge Dawes)

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CRIMINAL LAW – Appeal – Sentence – Co-offenders – Parity – Intentionally cause serious injury – Applicant sentenced to total effective sentence of 5 years and 6 months’ imprisonment with non-parole period of 3 years and 6 months’ imprisonment – Co-offender sentenced to 9 months less on both total effective sentence and non-parole period – Whether disparity between sentences offended parity principle – Whether disparity manifestly excessive – Differences in personal circumstances – Age – Prior convictions – Co-offender youthful offender with no prior convictions – Disparity in sentences readily explicable – Leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms J Poole	Giorgianni & Liang Lawyers
For the Respondent	Ms M Mahady	Ms A Hogan, Solicitor for Public Prosecutions

WEINBERG JA
OSBORN JA:

On 18 September 2018, in the County Court at Melbourne the applicant pleaded guilty to a single charge of intentionally cause serious injury. He was sentenced by her Honour Judge Dawes on 3 October 2018 as follows:

Charge on Indictment C1711200.1

Offence

Maximum

Sentence

Cumulation

Cause serious injury intentionally [s 16 of the Crimes Act 1958] 20 years 5 years 6 months’ imprisonment N/A

Total Effective Sentence: 5 years 6 months’ imprisonment

Non-Parole Period: 3 years 6 months’ imprisonment

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 215 days

6AAA Statement: 6 years 6 months’ imprisonment with a non-parole period of 4 years and 9 months imprisonment

Other relevant orders: Forfeiture order; forensic sample order under s464ZF of the Crimes Act 1958

Charge on Indictment C1711200.1	Offence	Maximum	Sentence	Cumulation
Cause serious injury intentionally [s 16 of the Crimes Act 1958]	20 years	5 years 6 months’ imprisonment	N/A
Total Effective Sentence:	5 years 6 months’ imprisonment
Non-Parole Period:	3 years 6 months’ imprisonment
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:	215 days
6AAA Statement: 6 years 6 months’ imprisonment with a non-parole period of 4 years and 9 months imprisonment
Other relevant orders: Forfeiture order; forensic sample order under s464ZF of the Crimes Act 1958

On the same day, the applicant’s co-offender, Scek, who had also pleaded guilty to the same charge was sentenced as follows:

Charge on Indictment C1711200.1

Offence

Maximum

Sentence

Cumulation

Cause serious injury intentionally [s 16 of the Crimes Act 1958] 20 years 4 years 9 months’ imprisonment N/A

Total Effective Sentence: 4 years 9 months’ imprisonment

Non-Parole Period: 2 years 9 months’ imprisonment

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 266 days

6AAA Statement: 5 years 9 months’ imprisonment with a non-parole period of 4 years and 9 months imprisonment

Other relevant orders: Forfeiture order; forensic sample order under s464ZF of the Crimes Act 1958

Charge on Indictment C1711200.1	Offence	Maximum	Sentence	Cumulation
Cause serious injury intentionally [s 16 of the Crimes Act 1958]	20 years	4 years 9 months’ imprisonment	N/A
Total Effective Sentence:	4 years 9 months’ imprisonment
Non-Parole Period:	2 years 9 months’ imprisonment
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:	266 days
6AAA Statement: 5 years 9 months’ imprisonment with a non-parole period of 4 years and 9 months imprisonment
Other relevant orders: Forfeiture order; forensic sample order under s464ZF of the Crimes Act 1958

The applicant now seeks leave to appeal on the single ground that the sentencing judge erred in imposing a sentence and a non-parole period that offended the principle of parity.

It is submitted that the difference of nine months between both the total effective sentences and the non-parole periods imposed gives rise to a differential of respectively 15% and 27%.

Circumstances of the offending

On the night of Saturday 17 March 2017, the applicant attended the 30^th birthday party of…

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 Said Abdirahman v The Queen

Details

AGLC: Said Abdirahman v The Queen [2020] VSCA 87
Case: [2020] VSCA 87
Decision Date: 15 April 2020

CaseChat Overview and Summary

Said Abdirahman appealed against his sentence for intentionally causing serious injury, with the High Court considering whether the disparity between his sentence and that of his co-offender offended the parity principle. Abdirahman was sentenced to a total effective sentence of 5 years and 6 months' imprisonment, with a non-parole period of 3 years and 6 months, while his co-offender received a sentence of 4 years and 9 months with a non-parole period of 2 years and 9 months. The legal issues before the court included whether the disparity in sentences was so excessive as to offend the parity principle and whether the disparity could be readily explained by differences in personal circumstances.

The court found that the disparity in sentences was not manifestly excessive and could be readily explained by the differing personal circumstances of the applicants. Abdirahman, the appellant, was an adult with prior convictions, whereas the co-offender was a youthful offender with no prior criminal history. This distinction provided a rational basis for the sentencing disparity. The court held that the sentencing judge had appropriately considered the disparity and explained the differences in the sentences based on the personal circumstances of the offenders. Consequently, the court found that the disparity did not offend the parity principle.

In light of the reasoning provided, the High Court dismissed the appeal and refused leave to appeal. The court concluded that the disparity in sentences between Abdirahman and his co-offender was not manifestly excessive and was adequately explained by their differing personal circumstances, thereby upholding the original sentencing decision.

Orders