Saleem v The Queen - [2014] VSCA 190

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0065

ASIF SALEEM	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	REDLICH and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 August 2014
DATE OF JUDGMENT:	26 August 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 190
JUDGMENT APPEALED FROM:	DPP v Saleem (Unreported, County Court of Victoria, Judge Tinney, 14 March 2014)

---

CRIMINAL LAW – Sentence – Application for leave to appeal – Applicant pleaded guilty to attempting to pervert the course of justice – Forged medical report and character reference provided to sentencing Magistrate – Whether sentence of 14 months’ imprisonment manifestly excessive – Application granted – Appeal allowed – Applicant re-sentenced.

---

APPEARANCES:	Counsel	Solicitors
The applicant in person
For the Crown	Mr J B B Lewis	Mr C Hyland, Solicitor for Public Prosecutions

THE COURT:

Introduction

The applicant, who is self-represented, seeks leave to appeal against a sentence of 14 months’ imprisonment imposed upon him by a judge of the County Court on 14 March 2014, following a plea of guilty to attempting to pervert the course of justice.[1]
[1]Attempting to pervert the course of justice is an offence at common law. By s 320 of the Crimes Act 1958, the maximum penalty is 25 years’ imprisonment.

For the reasons that follow, we would grant leave to appeal, allow the appeal and make the orders which follow.[2]
[2]At [50]–[53] below.

Background

The applicant is aged 39 years, having been born on 28 October 1974. He was arrested and charged with the current offence on 16 August 2013. At committal on 29 October 2013, he indicated a plea of guilty and the matter proceeded by way of straight hand-up brief.

It is necessary briefly to describe the applicant’s offending. On 30 October 2012, the applicant was found guilty of the theft of a wallet after a contested hearing in the Melbourne Magistrates’ Court. While standing in a queue at the post office on 4 May 2011, he had taken a wallet containing $300 from the bag of the customer standing in front of him. His conviction for this offence breached a two year suspended sentence of imprisonment imposed upon him on 17 December 2010 for theft and obtaining property by deception.

A consolidated plea hearing was fixed for 2 August 2013, to deal with the conviction of 30 October 2012 and the breach of suspended sentence of 17 December 2010, together with three further matters — an unlawful assault committed on 17 April 2012; theft and obtaining property by deception committed on 1 July 2012; and a related breach of a suspended sentence of one month’s imprisonment (suspended for one year) which had been imposed on 12 December 2011, for offences of obtaining property by deception on 16 July 2009 and 1 September 2010.

For the purposes of the hearing on 2 August 2013, the applicant provided his solicitor with two documents which his solicitor tendered to the court as part of his plea on the applicant’s…

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.

Keep reading for free

Create a free CaseChat account to read Saleem v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] VSCA 190
Decision Date: 26 August 2014

CaseChat Overview and Summary

The applicant, Saleem, pleaded guilty to attempting to pervert the course of justice by submitting a forged medical report and a character reference to the sentencing magistrate. The High Court of Australia was tasked with considering whether the sentence of 14 months’ imprisonment was manifestly excessive and whether leave to appeal should be granted. The legal issues before the court were whether the sentence imposed was manifestly excessive and whether the appeal should be allowed.

The court examined the principle that a sentence should be proportionate to the offence committed. It considered the severity of the offence, the nature of the applicant's involvement, and the principles of proportionality and fairness in sentencing. The court found that the sentence was manifestly excessive, taking into account the mitigating factors presented, such as the applicant’s guilty plea and remorse. The court concluded that the sentence did not reflect the proportionality and fairness required by the law.

Consequently, the court granted leave to appeal and allowed the appeal. The applicant was re-sentenced to a term that the court deemed appropriate, reflecting a fair and proportionate response to the offence committed. This decision underscores the importance of ensuring that sentences are neither excessively harsh nor lenient, maintaining a balance between punishment and justice.

Orders