Wasif v The Queen - [2022] VSCA 182

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0097

FADY WASIF	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NIALL and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 August 2022
DATE OF JUDGMENT:	1 September 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 182
JUDGMENT APPEALED FROM:	[2022] VCC 1172 (Judge Hampel)

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CRIMINAL LAW – Application for leave to appeal against sentence – Resentencing following breach of community correction order – Original sentence of 11 months 14 days’ imprisonment and community correction order for two years for offences of intentionally damaging property, stalking, theft, attempt to pervert the course of justice and breach of bail – Plea of guilty to charge of breach of community correction order – Failure to attend a number of appointments as required by corrections authority – Applicant resentenced to 22 months’ imprisonment – Whether sentence manifestly excessive – Principle of parsimony – Section 5(3) of Sentencing Act 1991 – Application for leave, and appeal, allowed – Applicant resentenced to 12 months’ and 14 days imprisonment.

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Counsel
Applicant:		Mr P Smallwood
Respondent:		Ms A Roodenburg
Solicitors
Applicant:	Theo Magazis & Associates
Respondent:	Solicitor for Public Prosecutions

NIALL JA
KAYE JA:

On 29 October 2019 the applicant pleaded guilty in the County Court to charges of intentionally damaging property, stalking, theft and attempting to pervert the course of justice. He also pleaded guilty to a summary charge of failing to answer bail. On 30 October 2019 he was sentenced to a total effective sentence of 11 months and 14 days’ imprisonment in combination with a two year community correction order (‘CCO’). Subsequently, on 21 July 2022 the applicant pleaded guilty before the County Court to one charge of failing without reasonable cause to comply with the CCO. On that date, the CCO was cancelled, and the applicant was resentenced to a total effective sentence of one year and ten months’ imprisonment with a non-parole period of 14 months.
The applicant seeks leave to appeal against the sentence imposed on 21 July 2022 on the following grounds:
(1)the sentence contravened the common law principle of parsimony;
(2)the sentence was more severe than that which was necessary to achieve the purposes for which the sentence was imposed and therefore contravened s 5(3) of the Sentencing Act1991;
(3)the sentence was manifestly excessive because the wrong type of sentence was imposed.

Circumstances of offending

The applicant was born in November 1985 and was 33 years of age at the time of the offending for which he was first sentenced in 2019.
In 2010, the applicant commenced a relationship with the complainant which lasted for seven years. They were married in August 2017, and there were no children of the relationship.
In December 2018, the complainant discovered that the applicant had been involved in a sexual relationship with another woman, KC. The complainant learnt of the affair when the applicant was arrested and interviewed in relation to offences against KC. Notwithstanding that discovery, the complainant continued to…

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 Wasif v The Queen

Details

AGLC: Wasif v The Queen [2022] VSCA 182
Case: [2022] VSCA 182
Decision Date: 1 September 2022

CaseChat Overview and Summary

The appellant, Wasif, was convicted for a series of offences including damaging property, stalking, theft, attempting to pervert the course of justice, and breaching bail. He was initially sentenced to 11 months and 14 days imprisonment, to be followed by a two-year community correction order. Wasif subsequently pleaded guilty to breaching the community correction order by failing to attend several appointments as mandated by the corrections authority. He was resentenced to 22 months imprisonment, which he now sought to appeal on the grounds of being manifestly excessive. The primary legal issue before the court was whether the resentencing was in breach of the principle of parsimony, as stipulated in section 5(3) of the Sentencing Act 1991.

The court considered the principle of parsimony, which mandates that a sentence should not exceed what is necessary to achieve the underlying purposes of sentencing. The court found that the resentencing of 22 months was excessive, given the original sentence and the nature of the breach. The court noted that the breach, while serious, did not warrant such a significant increase in the custodial term. The court emphasised that the original sentence had already accounted for the seriousness of the original offences and that the principle of parsimony should guide the resentencing to ensure it remains proportionate and justified.

In light of the above, the court allowed the application for leave to appeal and the appeal itself. The court resentenced Wasif to 12 months and 14 days imprisonment, finding this to be a more appropriate and proportionate sentence. The court highlighted that the resentencing should reflect the principle of parsimony and be commensurate with the nature of the breach. The final orders of the court mandated the re-imposition of the sentence of 12 months and 14 days imprisonment.

Orders