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Younan v The Queen

Younan v The Queen

Case [2017] VSCA 12 10 February 2017

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0140

NOURS YOUNAN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH and FERGUSON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 February 2017
DATE OF JUDGMENT:	10 February 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 12
JUDGMENT APPEALED FROM:	DPP v Younan (Unreported, County Court of Victoria, Judge Tinney, 27 May 2016)

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CRIMINAL LAW – Appeal – Sentence – Multiple serious armed robberies – Manifest excess – Full and frank admissions made – Without admissions insufficient evidence to charge – R v Ellis (1986) 6 NSWLR 603, R v Doran [2005] VSCA 271, JBM v The Queen [2013] VSCA 69, Adamson v The Queen (2015) 47 VR 268, applied – Guilty plea at early stage – Youthful offender – No prior convictions – Good prospects of rehabilitation – Current sentencing practice – R v Kilic [2016] HCA 48, applied – Abdou and Chebib v The Queen [2015] VSCA 359, Kruzenga v The Queen [2014] VSCA 10, DPP v Ghazi [2015] VSCA 188, considered – Sentence of 9 years and 9 months manifestly excessive – Applicant resentenced to 7 years’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C T Carr	Theo Magazis & Associates
For the Crown	Mr C B Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

REDLICH JA
FERGUSON JA

The applicant pleaded guilty to 5 charges of armed robbery, one charge of attempted armed robbery, and one charge of theft, arising out of a series of armed robberies committed by the applicant and various co-offenders in the period between 7 December 2014 and 18 February 2015. Following a plea on 19 May 2016, the applicant was sentenced as follows:

Charge

Offence

Maximum

Sentence

Cumulation

1

Attempted armed robbery (s 321M Crimes Act 1958)

20 y (s 321P Crimes Act 1958)

1 year 6 months

3 months

2

Armed robbery (s 75A(1) Crimes Act 1958)

25 y (s 75A(2) Crimes Act 1958)

4 years 6 months

1 year

3

Armed robbery (s 75A(1) Crimes Act 1958)

25 y (s 75A(2) Crimes Act 1958)

5 years

1 year

4

Armed robbery (s 75A(1) Crimes Act 1958)

25 y (s 75A(2) Crimes Act 1958)

5 years

Base

5

Theft
(s 74 Crimes Act 1958)

10 y (s 74 Crimes Act 1958)

1 year

3 months

6

Armed robbery (s 75A(1) Crimes Act 1958)

25 y (s 75A(2) Crimes Act 1958)

4 years 6 months

1 year

7

Armed robbery (s 75A(1) Crimes Act 1958)

25 y (s 75A(2) Crimes Act 1958)

4 years

1 year 3 months

Total Effective Sentence:

9 years 9 months

Non-Parole Period:

6 years 6 months

Pre-sentence Detention Declared:

48 days

6AAA Statement:

15 years (non-parole period of 11 years 6 months)

The applicant now appeals against sentence on the sole ground[1] that each of the sentences imposed, the orders for cumulation,…

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 Younan v The Queen

Details

AGLC: Younan v The Queen [2017] VSCA 12
Case: [2017] VSCA 12
Decision Date: 10 February 2017

CaseChat Overview and Summary

The applicant, Younan, appealed against his sentence following his conviction for multiple serious armed robberies. The Court of Appeal was required to determine whether the original sentence was manifestly excessive and, if so, what an appropriate resentence would be. The Supreme Court had sentenced Younan to 9 years and 9 months' imprisonment. The appeal centred on the principles of sentencing for multiple offences, the impact of a guilty plea at an early stage, and the prospects for rehabilitation. The Court considered that the sentence was manifestly excessive given the full and frank admissions made by the applicant, which played a significant role in securing his conviction. Without these admissions, there was insufficient evidence to charge him with some of the offences. The Court also noted the applicant’s age, the absence of prior convictions, and his prospects for rehabilitation. These factors, combined with current sentencing practices and the principles articulated in previous cases, led the Court to conclude that the original sentence was manifestly excessive. It resentenced Younan to 7 years’ imprisonment.

The Court of Appeal applied the principles from R v Ellis, R v Doran, JBM v The Queen, and Adamson v The Queen, recognising the mitigating effect of the applicant’s early guilty plea. The principles from Abdou and Chebib v The Queen, Kruzenga v The Queen, and DPP v Ghazi were also considered to ensure a balanced and appropriate resentence. The Court highlighted the importance of proportionality in sentencing, ensuring that the punishment fits the crime while also considering the individual circumstances of the offender. The Court of Appeal found that the original sentence did not adequately account for the mitigating factors present in this case, leading to a decision that the sentence was manifestly excessive. As a result, the applicant was resentenced to 7 years’ imprisonment, reflecting a more balanced approach to his culpability and prospects for rehabilitation.

Orders