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Taleb v The Queen

Taleb v The Queen

Case [2020] VSCA 329 21 December 2020

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0011

ALI TALEB	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and WEINBERG JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 October 2020
DATE OF JUDGMENT:	21 December 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 329
JUDGMENT APPEALED FROM:	[2019] VCC 2206 (Judge D Sexton)

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CRIMINAL LAW – Appeal – Sentence – Parity – Home invasion – Total effective sentence 3 years and 3 months’ imprisonment, non-parole period 22 months – Co-offender sentenced to 181 days plus 12 month CCO – Whether disparity justified – Co-offender sentenced by lower court, for different offence and on different factual matrix – Co-offender sentence ‘inexplicably low’ – Applicant’s sentence at low end of range – Reasonably open to judge to differentiate between co-offenders – Desirability of co-offenders being sentenced by same court at same time – Leave to appeal refused – Topal v The Queen [2019] VSCA 289 , Director of Public Prosecutions (Cth) v Peng [2014] VSCA 128, R v Rodden [2005] VSCA 24, Director of Public Prosecutions (Vic) v O’Brien [2019] VSCA 254 applied – Crimes Act1958 ss 77, 77A.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Mence	Papa Hughes Lawyers
For the Respondent	Ms D I Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P

WEINBERG JA:

Summary

This application highlights once again the difficulties which can arise when co-offenders are dealt with by different courts for the same offending. As will appear, the separation of the applicant’s case from those of his co-offenders resulted in the sentencing disparity about which he now complains.

The applicant and two others took part in a home invasion in the early hours of the morning. One of the others (Alaa Chakik) was carrying a meat cleaver. The applicant and Chakik were subsequently charged with the offence of aggravated home invasion, under s 77B of the Crimes Act 1958.[1] It was alleged that they had entered the premises, in company, with intent to steal.
[1]The maximum penalty for that offence is 25 years’ imprisonment. What makes this offence particularly serious is the fact that any person convicted of it must receive a non-parole period of at least 3 years. That distinguishes it from ordinary home invasion under s 77A, which requires the imposition of a custodial term for anyone convicted of that offence, but sets no minimum non-parole period.

The case against the applicant resolved at the outset of his committal, with him pleading guilty to the lesser charge of home invasion, under s 77A.[2] He was remanded to appear in the County Court for sentence. Chakik, on the other hand, contested his committal and, as a result of rulings made by the magistrate, ended up facing only a charge of aggravated burglary. Over the prosecution’s objection, the magistrate proceeded to hear Chakik’s plea of guilty to that charge in the summary jurisdiction.
[2]The offence of home invasion can be viewed as a ‘lesser charge’…

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 Taleb v The Queen

Details

AGLC: Taleb v The Queen [2020] VSCA 329
Case: [2020] VSCA 329
Decision Date: 21 December 2020

CaseChat Overview and Summary

Taleb, the appellant, sought to appeal against his sentence for home invasion, arguing that the disparity between his sentence and that of his co-offender was unjust. The co-offender had been sentenced to a significantly shorter term, which Taleb argued was inexplicable given the roles and culpability of the two individuals. The Court of Appeal for the State of Victoria heard the appeal and assessed the legal issues regarding the appropriate sentence for Taleb.

The primary legal issues for the court were whether the disparity between Taleb's sentence and that of his co-offender was justified, and if not, whether this warranted a reduction in Taleb's sentence. The court had to consider the principles of parity in sentencing, the different factual matrices and offences for which each offender was sentenced, and the appropriateness of Taleb's sentence within the sentencing range.

The court held that Taleb's sentence was appropriately at the lower end of the sentencing range for the offence, and it was reasonably open to the trial judge to differentiate between the roles and culpability of the two co-offenders. The court also noted the desirability of co-offenders being sentenced by the same court at the same time, but this was not determinative in this case. The co-offender's sentence was considered in light of its lower culpability and different factual circumstances. The court found that the trial judge's decision was within the bounds of reasonable sentencing discretion.

In conclusion, the Court of Appeal dismissed the appeal, upholding the original sentence imposed on Taleb. The court found that the disparity in sentences was justified based on the differing roles and factual circumstances of the co-offenders, and that Taleb's sentence was appropriately low within the sentencing range. The appeal was therefore dismissed, and Taleb's original sentence remained in place.

Orders