Said v The Queen - [2020] VSCA 178

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0043

OMID SAID	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BEACH, EMERTON and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 June 2020
DATE OF JUDGMENT:	1 July 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 178
JUDGMENT APPERAD FROM:	[2018] VCC 2117 (Judge Higham)

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CRIMINAL LAW – Appeal – Conviction – Trafficking in a drug of dependence – Arson – Conspiracy to commit arson – Attempt to possess firearm while prohibited person – Common assault – Handling stolen goods – Plea of guilty to attempt to possess firearm said to be negated because, upon admitted facts, as set out in prosecution summary, applicant could not, in law, be guilty of offence – Acceptance during plea hearing as to accuracy and adequacy of summary with regard to charge of attempt to possess firearm – Plea of guilty to be given its ordinary effect – Leave to appeal against conviction refused.

CRIMINAL LAW – Appeal – Sentence – Total effective term of 14 years’ imprisonment with non-parole period of 10 years – Sentence of 7 years and 3 months on charge of arson – Sentence conceded to be stern – Whether sentence manifestly excessive – Grave offending – Warring motorcycle gangs – Sentence within range – Leave to appeal against sentence refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr T Kassimatis QC with Mr C K Wareham	Chester Metcalfe & Co
For the Respondent:	Mr C B Boyce QC	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA

EMERTON JA
WEINBERG JA:

On 4 October 2018, the applicant pleaded guilty in the County Court to arson, common assault, conspiracy to commit arson, handling stolen goods, trafficking in a commercial quantity of a drug of dependence, and attempting to possess a firearm whilst a prohibited person. He also pleaded guilty to a number of related summary offences. These included committing an indictable offence whilst on bail, contravening a conduct condition of bail, unlicensed driving, and contravening a community correction order.

On 12 December 2018, the applicant was sentenced as follows:

Charge No.

Offence

Maximum

Sentence

Cumulation

1. Arson
[s 197(6) — Crimes Act 1958] 15 years 7 years and 3 months 3 years

2. Common assault
[Common law, s 320 — Crimes Act 1958] 5 years 1 year 6 months

3. Conspiracy to commit arson
[ss 197(6), 321(1), and 321C(1)(c) — Crimes Act 1958] 15 years 4 years and 6 months 2 years

4. Handling stolen goods
[s 88 — Crimes Act 1958] 15 years 1 year —

5. Trafficking in drug of dependence — commercial quantity
[s 71AA — Drugs, Poisons and Controlled Substances Act 1981] 25 years 8 years Base

6. Attempt to possess firearm whilst prohibited person [s 5(1) — Firearms Act 1996, s 321M — Crimes Act 1958] 10 years 1 year 6 months

Related summary offences

— Commit indictable offence whilst on bail
[s 30B — Bail Act 1997

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 v The Queen

Details

AGLC: Said v The Queen [2020] VSCA 178
Case: [2020] VSCA 178
Decision Date: 1 July 2020

CaseChat Overview and Summary

Said sought to appeal against his conviction and sentence for various criminal offences. The charges included trafficking in a drug of dependence, conspiracy to commit arson, attempt to possess a firearm while a prohibited person, common assault, and handling stolen goods. The appeal was heard in the High Court of Australia. The legal issues focused on the validity of Said's guilty plea to the charge of attempting to possess a firearm and the severity of the sentence imposed.

The court considered whether Said could, in law, be guilty of the offence of attempting to possess a firearm based on the admitted facts. It was accepted during the plea hearing that the prosecution summary accurately and adequately set out the charge. The court found that Said's plea of guilty should be given its ordinary effect and that it was not negated by the admitted facts. The court rejected the argument that Said could not be guilty of the offence in question and confirmed the conviction.

In addition, the court examined whether the sentence of 14 years' imprisonment, with a non-parole period of 10 years, was manifestly excessive. The court noted that the sentence was stern but within the range for the grave offending involving warring motorcycle gangs. It was not considered manifestly excessive and was upheld. The application for leave to appeal against both the conviction and sentence was refused.

Orders