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Semaan v The Queen

Semaan v The Queen

Case [2017] VSCA 279 5 October 2017

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0103

MEGAN BELJULJI	Applicant
v
THE QUEEN	Respondent

S APCR 2017 0140

HANNA SEMAAN	Applicant
v
THE QUEEN	Respondent

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JUDGE:	SANTAMARIA JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 October 2017
DATE OF JUDGMENT:	5 October 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 279
JUDGMENT APPEALED FROM:	[2016] VSC 667 (Beale J)

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APPLICATIONS FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

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CRIMINAL LAW – Application for leave to appeal against sentence – Attempting to pervert the course of justice – Sentence of 3 years’ imprisonment with non-parole period of 2 years – Whether sentence manifestly excessive – Gravity of offending – Current sentencing practices – Where offence relates to murder charge of different co-offender – Tognolini v The Queen (2011) 32 VR 104 discussed – Director of Public Prosecutions v Oksuz (2015) 47 VR 731 discussed and applied – Leave to appeal refused.

CRIMINAL LAW – Application for leave to appeal against sentence – Two charges of attempting to pervert the course of justice – Sentence of 3 years’ imprisonment with non-parole period of 2 years – Whether sentence manifestly excessive – Whether disparity with sentence imposed on co-offender – Where offence relates to murder charge of different co-offender – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant in S APCR 2017 0103	Mr A L Hands	Davies Moloney
For the Applicant in S APCR 2017 0140	Mr J Gullaci	Theo Magazis & Associates
For the Respondent in both proceedings	Mr R L Gibson	Mr J Cain, Solicitor for Public Prosecutions

SANTAMARIA JA:

Following a trial in the Supreme Court, the applicants, Megan Beljulji and Hanna Semaan, were convicted of two charges of attempting to pervert the course of justice and one charge of attempting to pervert the course of justice, respectively. On 4 November 2016, they were sentenced as follows:

Hanna Semaan

Charge on indictment Offence Maximum penalty Sentence

2 Attempt to pervert the course of justice
[Crimes Act 1958 s 320] 25 years’ imprisonment 3 years’ imprisonment

Total effective sentence: 3 years’ imprisonment

Non-parole period: 2 years’ imprisonment

Pre-sentence detention declaration 59 days

Other relevant orders Forensic sample order

Megan Beljulji

Charge on indictment Offence Maximum penalty Sentence Cumulation

2 Attempt to pervert the course of justice
[Crimes Act 1958 s 320] 25 years’ imprisonment 2 years and 9 months’ imprisonment Base

3 Attempt to pervert the course of justice
[Crimes Act 1958 s 320] 25 years’ imprisonment 6 months’ imprisonment 3 months

Total effective sentence: 3 years’ imprisonment

Non-parole period: 2 years’ imprisonment

Pre-sentence detention declaration 60 days

Other relevant orders Forensic sample order

The applicants now seek leave to appeal their respective sentences.

Factual background

In order to place the offending by each of the applicants in context, it is necessary first to describe the substratum of facts from which that offending arose. At…

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 Semaan v The Queen

Details

AGLC: Megan Beljulji v The Queen [2017] VSCA 279
Case: [2017] VSCA 279
Decision Date: 5 October 2017

CaseChat Overview and Summary

The applicant, Semaan, sought leave to appeal against his sentence for two charges of attempting to pervert the course of justice. Semaan was sentenced to three years' imprisonment with a non-parole period of two years. The High Court was tasked with determining whether the sentence was manifestly excessive, considering the gravity of the offending, current sentencing practices, and the relationship of the offence to a murder charge of a co-offender.

The court considered whether the sentence was manifestly excessive, taking into account the principles established in Tognolini v The Queen and the more recent case of Director of Public Prosecutions v Oksuz. The court examined the gravity of the offence, the culpability of the offender, and the need for general and specific deterrence. It also assessed the disparity in sentencing between Semaan and his co-offender. The court found that the sentence was not manifestly excessive, considering the nature of the offence and the principles of sentencing.

In light of the principles established in Tognolini and Oksuz, the court held that the sentence was not manifestly excessive. The court considered the nature of the offence, the culpability of the offender, and the need for general and specific deterrence. The court also found that the disparity in sentencing between Semaan and his co-offender did not render the sentence manifestly excessive. Consequently, the application for leave to appeal was refused.

The court did not grant leave to appeal against the sentence, upholding the original sentence of three years’ imprisonment with a non-parole period of two years.

Orders