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[2017] VSCA 279
General information, not legal advice.
Court of Appeal (Vic)
2017-10-05
Mr J, Santamaria JA
Original judgment source is linked above.
APPLICATIONS FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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] VSCA 113; (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.
1 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:
2 The applicants now seek leave to appeal their respective sentences.
3 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 this point, it will suffice to note that the applicants stood trial together with Alexander John Semaan, who was found guilty of murder. All three individuals were sentenced together on 4 November 2016. Alexander Semaan was sentenced to 22 years and two months' imprisonment with a non-parole period of 18 years. On 21 September 2017, this Court refused him leave to appeal against his conviction and also allowed an appeal brought by the Director of Public Prosecutions on the basis that the sentence imposed was manifestly inadequate.[1] Alexander Semaan was resentenced to 28 years' imprisonment with a non-parole period of 24 years.[2]
4 On 1 December 2014 at about 9:00 pm, Alexander Semaan sat in the bungalow behind his mother's home at 137 Donald Street, East Brunswick.
5 Tony Kanaan, a relative of Alexander Semaan and a frequent visitor at that premises, arrived and stood in the open doorway of the bungalow. Semaan was holding an ice pipe. He also had a gun on his lap. Semaan said to Kanaan, 'I want to kill everybody'. Kanaan asked, 'Who do you want to kill?' Semaan replied, 'Everybody'.
6 Alexander Semaan stood up and walked out of the bungalow, holding the gun in his hand. Michael Bekhazi, a friend of his, was sitting or squatting in the courtyard, looking through the contents of a bag. Semaan put the gun to the back of Bekhazi's head. Kanaan, who looked on in disbelief, tried to reason with Semaan. Semaan moved away from Bekhazi and over to the back gate, from where he could see a neighbour putting out her bins. He pointed the gun at her. Again, Kanaan tried to reason with Semaan.
7 Alexander Semaan turned around and walked back to Bekhazi, who was standing up at that time. Semaan pointed the gun at the forehead of Bekhazi, who lowered his head submissively. Semaan fired the gun. Bekhazi collapsed to the ground, fatally wounded.
8 Kanaan entered the house to get Alexander Semaan's elderly mother. He then hurried to a nearby hotel to get Semaan's brother-in-law, Yousef Semaan. Kanaan and Yousef returned to 137 Donald Street together.
9 At the time, other members of Alexander Semaan's extended family, who lived at or near 137 Donald Street, heard the shot that killed Bekhazi and rushed to his assistance. Bekhazi could not be resuscitated.
10 Alexander Semaan retreated to the bungalow, where he was joined by a number of family members. The sentencing judge found that Semaan continued to behave in a threatening manner.[3]
11 Shortly thereafter, the applicants arrived at the premises. Megan Beljulji was Alexander Semaan's girlfriend at the time. Hanna Semaan is Alexander Semaan's sister.
12 Beljulji joined Alexander Semaan in the bungalow, where they remained for several hours in the face of pleas from family members and police negotiators for their surrender. When speaking to a police negotiator over the phone, Semaan said that he had been asleep and did not know anything about the shooting. Beljulji told police the same thing over the phone. Eventually, police entered the bungalow and arrested Semaan. He was found to be heavily affected by drugs, as was Beljulji.
13 On the night of the shooting, Kanaan made a statement to police saying that he saw Alexander Semaan shoot Bekhazi.
14 On 2 December 2014, Alexander Semaan was remanded in custody.
15 From 4 December 2014, Alexander Semaan was involved in a series of recorded prison telephone calls. Most of the calls involved Beljulji, and some involved Hanna Semaan. In those calls, Semaan maintained his innocence. The sentencing judge found that Semaan knew that these calls were being recorded by the authorities and that Semaan sought to take advantage of that fact.[4] At his trial, Semaan relied heavily upon what the sentencing judge described as the 'mostly self-serving' content of those calls.[5] Initially in those calls, Semaan persisted with the story that he had been asleep in the bungalow when Bekhazi was shot and knew nothing about the murder. At trial, however, Semaan alleged that: (a) an unknown intruder had entered the bungalow when he was drug-affected and vulnerable; (b) during a struggle with the intruder, the intruder fired two shots: one in the bathroom and one in the lounge room of the bungalow; (c) Semaan passed out during the struggle in the lounge room; and (d) the intruder must have shot Bekhazi in the courtyard as he was leaving the premises. Semaan also alleged in those calls that Kanaan must have been a party to the unsuccessful robbery and was covering up that involvement by falsely accusing Semaan of the murder. Semaan said during the calls that there was bullet damage in the bungalow that would vindicate him. The sentencing judge also found that Beljulji and Hanna Semaan went along with this charade during the calls and in the way they ran their defences at trial on the charges of attempting to pervert the course of justice.[6]
16 On 18 December 2014, Alexander Semaan's solicitors, at his request, formally advised the informant of Semaan's instructions that there had been an armed intruder on the night of the shooting. The solicitors requested that police re-examine the crime scene. Police ballistics experts, who had examined the crime scene on 2 December 2014 and found no bullet damage, re-examined the crime scene on 23 December 2014 pursuant to a warrant. The events that followed will be described below.[7]
17 On 31 March 2016,[8] Alexander Semaan's solicitors, at his request, asked the police to re-examine the crime scene again, asserting that there was bullet damage in a shed that had been initially overlooked by investigators. Police were provided with photos of the bullet damage in the shed, but they did not attend the crime scene again.[9]
Circumstances of the offending by the applicants
18 It is to be recalled that, on the night of the shooting, Kanaan made a statement to police saying that he saw Alexander Semaan shoot Bekhazi.
19 A day or so after the shooting, Kanaan attended 137 Donald Street.[10]
Hanna Semaan was present, along with other members of her family. Hanna Semaan berated Kanaan for what he had told police, saying that it could put her brother in jail for many years. She pressured Kanaan to change his police statement. Kanaan was surprised that Hanna Semaan seemed to know the contents of his statement.
20 Kanaan returned to his temporary home at 190 Stewart Street, East Brunswick, where he was living with some of his relatives. He discovered that his copy of his statement had gone missing from the bag in which he had put it in the early hours of 2 December 2014. Kanaan later came into possession of that statement and advised the informant that he had it.
21 The sentencing judge rejected and considered implausible the account of Hanna Semaan and some of her relatives that Kanaan brought the statement with him to 137 Donald Street and asked for someone to translate it for him, claiming that he was not sure what was in it and then disavowing much of it once it was translated.[11] The judge noted that, before Kanaan signed the statement at the police station on 2 December 2014, it was read back to him with the aid of an interpreter; he was well aware of the contents of his statement and had no need to take it to 137 Donald Street to have it translated.[12]
22 On 15 December 2014, a man named Pierre Diab attended Kanaan's temporary home at 190 Stewart Street. Without warning, Diab approached Kanaan and punched him several times in the face. He then demanded that Kanaan go outside with him. Kanaan refused. Diab went outside and, a few minutes later, walked back in with Hanna Semaan and Beljulji. In the presence of Beljulji and Diab, Hanna Semaan again berated Kanaan for his police statement and pressured him to change it. Kanaan eventually told Hanna Semaan and Beljulji that he would change his police statement with the assistance of a solicitor, to be organised by Hanna Semaan. When Kanaan said that he would cooperate, Diab left. Hanna Semaan and Beljulji stayed for a little while longer and left together.
23 That night, Kanaan fled 190 Stewart Street. The next day, he told the informant about the attempts to get him to change his story. The informant observed injuries on Kanaan that were consistent with his account of being punched by Diab.[13]
24 As mentioned above, on 23 December 2014, police ballistics experts attended the scene of the shooting pursuant to a warrant. Immediately before they entered the bungalow to begin their search, Beljulji spoke to the officer in charge. She told him that Alexander Semaan wanted the investigators to look for bullet damage in a painting[14] and in the roof of the bungalow. Consistent with the instructions conveyed by Beljulji, police discovered bullet damage during their search.
25 The sentencing judge said that the offence of attempting to pervert the course of justice is a serious offence, which is reflected by the fact that it carries a maximum term of imprisonment of 25 years.[15] He accepted that Hanna Semaan's offending was 'not a low range example' of the offence for four reasons. First, the criminal prosecution that she attempted to pervert was a prosecution for murder, 'the most serious offence there is'.[16] Second, she was not interfering with Kanaan in the belief that he was wrongly accusing Alexander Semaan of shooting Bekhazi; given the way in which the prosecution ran its case, the jury's verdict meant that she had interfered with Kanaan in the belief that he was telling the truth when he told police that Alexander Semaan shot and killed Bekhazi. Third, she knew that Kanaan was the only eyewitness to the shooting. Fourth, her attempt to get Kanaan to change his story was not limited to one occasion; her criminality could not be described as occurring on the 'spur of the moment' or as a brief lapse of judgment.[17]
26 The sentencing judge remarked that, despite these considerations, he did not consider that Hanna Semaan's offending fell in the upper range for attempts to pervert the course of justice. He said that it is appropriately categorised as a mid-range example of the offence that called for stern punishment, 'especially in the interests of general deterrence'.[18]
27 The sentencing judge turned to Hanna Semaan's personal history. At the outset, he observed that she has had 'a hard life'.[19] He elaborated:
You were subjected to physical and sexual abuse in an arranged marriage. You have had two children, both afflicted with cerebral palsy. Your son died at 20. Your daughter who is 29 is wheel chair bound. Whilst she lives independently, she has carers who have to wash her and dress her each day. You oversee her care. I have no reason to doubt that you are devoted to your daughter who is isolated by her condition. Prior to being remanded in custody at the end of the trial, you would attend on your daughter for several hours every day. [20]
28 The sentencing judge indicated that, in addition to a psychological report on Hanna Semaan, he received a psychological report on her daughter and a report from one of her support workers. Both reports spoke of her daughter's distress at Hanna Semaan's being in custody. The judge accepted that Semaan's time in gaol will be harder for her because of her separation from her daughter and anxiety about her situation.[21] He indicated that he would moderate the sentence imposed on her to take account of that fact,[22] as well as the fact that she had been subject to a bail condition that prohibited her from communicating with family members, other than her mother, for close to two years.[23]
29 The sentencing judge also considered Hanna Semaan's prior criminal convictions, which he described as 'not insignificant'.[24] He said:
Your attempt to pervert was an attempt to deceive. You have priors for deception. At Melbourne Magistrates' Court on 15 July 2010, you were convicted of seven counts of obtaining property by deception and two counts of obtaining financial advantage by deception. You received an aggregate sentence of four months' imprisonment, suspended for 12 months. With [Alexander's] assistance, you withdrew approximately $67,000 from a bank account in his name, even though a court order had forfeited the moneys in that account to the Crown as a result of [Alexander] being convicted of an automatic forfeiture offence.[25]
30 Finally, the sentencing judge assessed Hanna Semaan's prospects for rehabilitation. The judge noted that she had shown no remorse and had continued falsely to assert her innocence. He acknowledged, however, that she had a limited criminal history and that the impending sentence would be the first sentence of immediate imprisonment. He also believed that she was 'more than capable of appreciating that further offending will lead to further imprisonment and further periods of separation from' her daughter.[26] The judge assessed her prospects of rehabilitation as reasonable.[27]
31 Before imposing the sentence, the sentencing judge observed that Hanna Semaan's offending was serious and 'strikes at the heart of the criminal justice system'.[28] He said that general deterrence was a particularly important sentencing consideration in the circumstances.[29] To that end, and in the light of the aggravating factors set out above, the judge regarded a maximum term of imprisonment of two years (in combination with a community corrections order) as an inadequate head sentence.[30] He finally noted that, having run her trial, she was not entitled to a discount that would ordinarily accompany a plea of guilty.[31]
32 Hanna Semaan seeks leave to appeal her sentence on the proposed ground of manifest excess. The particulars upon which that ground relies are that insufficient weight was given to: (a) the gravity of the offending; (b) the matters in mitigation; and (c) current sentencing practice for the offence of attempting to pervert the course of justice.
33 In her written submissions, Hanna Semaan acknowledged that the offending before the court was 'undoubtedly serious' but nonetheless warranted the label of being a mid-level example of the offence of attempting to pervert the course of justice. She contended, as she did on the plea,[32] that regard must be had to the fact that the offending was 'relatively short-lived', 'relatively unsophisticated', and 'wholly unsuccessful'. She argued that, while there were two separate incidents that formed the factual basis of the offence, this was not a continuing offence from the first incident up to and including the second incident. She also disputes the observations made by the sentencing judge in the following exchange between the judge and her counsel during the plea:
Counsel: ... it wouldn't be fair either to conclude that her efforts to have [Kanaan] change his statement continued unabated from the 3rd to the 15th [of December].
Judge: No, I've only got evidence of two occasions, two encounters ... But there's a certain persistence nonetheless, if I took that view, that it began on the 3rd, carried over to the 15th.[33]
34 Hanna Semaan also contended that the sentencing judge gave insufficient weight to: (a) her background; (b) her lack of subsequent convictions or outstanding charges, and her compliance with onerous bail conditions; and (c) the view that imprisonment would involve a greater degree of hardship for her given her back problems (which are mentioned below) and concern for her daughter.
35 As to her background, Hanna Semaan pointed to the following facts:
(a) she was married and had her first child at the age of 16;
(b) she was subjected to domestic violence throughout her marriage;
(c) each of her two children was born three months premature and suffer from severe cerebral palsy;
(d) her marriage broke down and the father of the two children has had nothing more to do with the children;
(e) the younger child became a foster child after the Department of Human Services determined that Semaan could not look after two children who had high levels of need;
(f) she provides significant care to her older child who lives independently but receives seven hours of professional care each day, supplemented by her caring for the child six hours a day;
(h) she suffered a significant back injury in 2011 and was placed on a disability support pension.
36 As to her lack of subsequent convictions or outstanding charges, and her compliance with onerous bail conditions, Hanna Semaan described her prior criminal history as 'modest'. She said that this history involved three previous court appearances over a 15-year period. Two of those appearances led to undertakings by her to be of good behaviour. The other appearance, to which the sentencing judge made reference in his remarks,[34] related to an offence involving deception for which she received a suspended sentence of four months' imprisonment.
37 Hanna Semaan further contended that the sentencing judge gave insufficient weight to current sentencing practice for the offence of attempting to pervert the course of justice.[35]
38 On 27 September 2017, the Registrar of the Court of Appeal wrote to the parties in both proceedings to advise them that the Court would ask counsel to address in their oral submissions this Court's decision in Director of Public Prosecutions v Oksuz.[36] That decision, and certain aspects of the parties' submissions with respect to that decision, are considered below.[37]
39 In R v Buscema,[38] Nettle JA said:
Offences of attempting to pervert the course of justice are conceived of as striking at the heart of the justice system and, therefore, as ordinarily necessitating a custodial disposition. The offence is broadly defined, however, and so may be committed in a wide range of circumstances, and the particular circumstances of each case inform the gravity of the offending. Circumstances which bear upon the assessment of the nature and gravity of particular offending, and so upon the sentence to be imposed, have been identified as including the following:
a) The consequences which the offending was calculated to avoid;
d) Whether there was any threat or violence involved;
e) Whether the offence was spontaneous or premeditated;
40 The proposed ground of manifest excess can succeed only if Hanna Semaan can show that the sentence imposed is wholly outside the range of sentencing options available.[40]
41 In Tognolini v The Queen,[41] the offender, who was aged 41 at the time of the offending, was charged with a sexual offence involving a girl aged 14[42] and pleaded guilty to 18 counts of supplying a drug of dependence to a child under the age of 16. He was also charged with attempting to pervert the course of justice. At the time, three girls (one of whom was aged 14) had made allegations that the offender had committed sexual offences against them. The offender persuaded two other teenage girls to make false affidavits saying that the three girls who had made allegations against him were liars. The offender had driven the two girls to a solicitor's office and had given them drugs and money as inducements. He had also intimidated one of the girls that he took to the solicitor's office. He was sentenced to six years' imprisonment on the charge of attempting to pervert the course of justice.[43] This Court (Maxwell P, Buchanan and Redlich JJA) held that the sentence was outside the range reasonably open to the sentencing judge and substituted a sentence of four years' imprisonment.[44]
42 In Oksuz, the offender was convicted on a plea of guilty to one charge of blackmail, one charge of reckless conduct endangering life, four charges of possessing a drug of dependence and one charge of attempting to pervert the course of justice. He claimed that the victim's son, who was in prison, owed him money. He threatened the victim with a firearm and made threats that the son would be harmed if the money was not paid. The victim's brother arranged for the second victim to move in with the victim in order to provide protection. An incident occurred in which further threats were made and a co-offender of the offender shot the second victim twice. The offender was charged and remanded in custody. Notably, while on remand, the offender attempted to have the victim retract a statement which incriminated him and sign a new statement which exonerated him. The offender was sentenced to six months' imprisonment with cumulation of six months on the charge of attempting to pervert the course of justice.[45] On an appeal brought by the Crown, Redlich and Kyrou JJA held that the individual sentence imposed on the charge of attempting to pervert the course of justice was manifestly inadequate and resentenced the offender to four years' imprisonment.[46] Croucher AJA agreed that the sentence imposed on that charge was manifestly inadequate; however, he would have fixed a sentence of two-and-a-half years' imprisonment.[47] Kyrou JA, who delivered the leading judgment, gave the following reasons for his conclusion that the individual sentence of six months' imprisonment was manifestly inadequate:
First, the sentence is entirely out of proportion to the seriousness of the offence as reflected in the maximum penalty of 25 years and judicial pronouncements such as those made in R v Johns and DPP v Aydin. The offence is serious because the conduct that constitutes it strikes at the heart of the administration of justice. It does so because it involves an offender seeking to deter witnesses from giving evidence - or giving truthful evidence - in court proceedings. Where the offence is committed in the context of a criminal proceeding, the aim of the offending conduct is to undermine the Crown's ability to secure a conviction against an accused person and thus bring him or her to justice. The serious harm to public safety and the rule of law resulting from such offending conduct is obvious.
Secondly, the sentence failed to reflect the serious nature of the offending in the present case ... The [facts giving rise to the offending] were part of a course of persistent and particularly grave conduct aimed at intimidating [the victim and his son] and forcing [the victim] to recant his version of events which implicated the [offender]. The intended and likely effect on [the victim] must be seen in the context of the threats of violence constituting the blackmail offence and the serious gunshot injuries inflicted on [the second victim].
The serious nature of the offences with which the [offender] had been charged and for which he sought to avoid punishment - namely blackmail and intentionally causing serious injury - are relevant to assessing the seriousness of the [attempting to pervert the course of justice] offence.
...
Thirdly, the offending involved detailed planning, subterfuge and the involvement of third parties. The draft statement that the respondent prepared for adoption by [the victim] was carefully drafted. In order to avoid detection, the [offender] made no reference to himself in the statement and also avoided direct communication with [the victim]. Instead, he sought to make his demands known through third parties ... The [offender] even went to the trouble of recommending five criminal defence solicitors to assist [the victim] in making a new statement. These protracted efforts over the period from 14 January 2013 until 28 February 2013 demonstrate that the [offender] was unrelenting in his endeavour to avoid being brought to justice for the blackmail offence and the offences relating to the shooting of [the second victim].
Fourthly, the sentence of six months was substantially below the range of sentencing options reasonably available to the judge. As the Crown pointed out, individual sentences of between 2 and 4 years have regularly been imposed for the offence of attempting to pervert the course of justice.
...
The circumstances of the present case are also more serious than those in Tognolini v The Queen, where the 46 year old offender was resentenced to 4 years' imprisonment. In that case, the offender persuaded two teenage girls to attend a solicitor's office to make false statements that three other girls (one of whom was aged 14) who had made allegations that the offender had committed sexual offences against them were liars. The offender had given the two girls drugs and money as inducements and had made a strangling gesture towards one of the girls by putting his hand around his throat when she was looking at him. I accept that the age and vulnerability of the girls was an aggravating circumstance in that case and that the offender's plea of not guilty deprived him of a sentencing discount. Nevertheless, the offending conduct in that case lacked a number of the key features of the present case ...
Fifthly, the sentence is insufficient to provide any meaningful deterrence to other accused persons - particularly those in custody - from committing similar offences. It is inconsistent with decisions of this Court which have emphasised that general deterrence is a significant sentencing consideration for the offence of attempting to pervert the course of justice. Having regard to the [offender's] criminal history and the escalation in the seriousness of his offending in the lead up to the commission of the [attempting to pervert the course of justice] offence, the sentence also failed to provide adequate specific deterrence. Once again, although the judge referred to the importance of general and specific deterrence, the sentence imposed failed to adequately reflect the importance of these sentencing considerations in the present case.
Sixthly, the mitigating circumstances upon which the [offender] relied ... did not provide a sound basis for imposing a lenient sentence when regard is had to the [offender's] criminal record and the judge's assessment of the [offender's] prospects of rehabilitation as 'guarded' ... I note that the [attempting to pervert the course of justice] offence was committed while the respondent was in custody awaiting trial, not only on the blackmail and [reckless conduct endangering life] charges, but also on the affray and possession charges.[48]
43 Quite apart from the seriousness of the offence of attempting to pervert the course of justice, there are a number of features in the present case which suggest that it is not reasonably arguable that the individual sentence of three years' imprisonment was manifestly excessive. Kanaan was the only eyewitness to the shooting of Bekhazi. As the sentencing judge observed, the jury's verdict meant that Hanna Semaan had interfered with Kanaan in the belief that he was telling the truth when he told police that Alexander Semaan shot and killed Bekhazi.[49] The attempt to persuade Kanaan to change his police statement was premeditated, rather than spontaneous. Further, the criminal prosecution the subject of the attempt was a prosecution for murder, which attracts a maximum sentence of life imprisonment. As Kyrou JA said in Oksuz, the nature of the offence with which an offender had been charged and for which he or she sought to avoid punishment is relevant to assessing the seriousness of the offence of attempting to pervert the course of justice.[50] There can be no doubt that the same principle applies where, as in the present case, the prosecution that an offender attempts to pervert is a prosecution concerning another person; in such a case, regard must be had to the nature of the offence from which the attempt to pervert the course of justice is a derivative.
45 The sentencing judge expanded on the nature of Beljulji's offending, which gave rise to separate charges that the sentencing judge conveniently described as 'the interference with the witness' (charge 2) and 'the putting of the police onto a false trail of evidence' (charge 3).[51] He said:
As regards attempts to get Kanaan to change his story to police, you were only involved in the confrontation at 190 Stewart Street on 15 December 2014. You played a silent but supporting role on that day: Hanna did all the talking. After the meeting on 15 December, you found out the details of solicitors who could help Kanaan with changing his statement and liaised with Hanna in that regard.
But that was not the end of your attempt to pervert the course of justice. Not only did you interfere with the principal witness for the prosecution, you were a party to putting police onto a false trail of evidence. It will be recalled that [Alexander] eventually claimed that Bekhazi had been shot by an armed intruder who had fired off two shots in the bungalow during a struggle with [Alexander]. [Alexander], through his solicitors, pressed the police to re-examine the crime scene, claiming they had overlooked bullet damage in the bungalow. The police re-attended at 137 Donald Street with a warrant on 23 December 2014 to re-examine the crime scene. When police were at the premises about to commence that re-examination, you called Hanna who was also there and asked to speak to the police. Hanna passed the phone to Detective Sgt Martin. You told him that you had spoken to [Alexander] who said that he wanted police to search the roof of the bungalow and a painting for bullet damage. The police went ahead with their search and found the false evidence. As to who made the bullet holes to lend credence to [Alexander's] defence, that remains a mystery. But when you passed on the message from Alex to the police, you did so in the belief that the crime scene had been tampered with. In a number of documents I have read about you, you are described as an intelligent young woman. That intelligence was not on display when you were a party to putting police onto a false trail of evidence.[52]
46 The sentencing judge regarded the interference with Kanaan as a mid-range example of the offence of attempting to pervert the course of justice, for most of the reasons that he gave in his sentencing remarks regarding Hanna Semaan.[53] He acknowledged, however, that Beljulji played a lesser role; she was involved in one confrontation only, and Hanna Semaan did all the talking on that occasion.[54]
47 The sentencing judge regarded the act of Beljulji putting police onto a false trail of evidence as a low-range example of the offence. He said that her participation in this act was brief and inconsequential.[55]
48 The sentencing judge briefly described Beljulji's personal, education and work history as follows:
[Y]ou are 28 years of age now. It appears that you grew up in a loving environment with your parents and an older sister. Although your parents eventually separated, that did not happen until you were 19. Your parents sent you to a private Catholic school. After that, you went into hairdressing for several years. You also worked as a sales representative and more recently you worked in accounts at Monash IVF, a position which you held for 18 months.[56]
49 The sentencing judge then identified what he considered to be 'two significant problems' with Beljulji's background: her use of illicit drugs and her relationship with Alexander Semaan.[57] The judge referred to a psychological report, tendered on the plea by counsel for Beljulji, which summarised her drug history as follows:
[Beljulji] acknowledged using a range of substances, in particular ice (and acknowledged having previously used Methadone; up to 40 ml). Ms Beljulji said she had used cannabis from the age of 16, ecstasy at 17, amphetamines and ice 'on and off... but I always worked'.[58]
The judge also gleaned that, based on testimonials from her parents and grandmother, Beljulji's ice use 'was probably more of a problem' than she revealed to the psychologist who had prepared the report.[59] The judge concluded that Beljulji's intense relationship over several years with Alexander Semaan, 'an older man, an ice user and convicted drug trafficker' who 'went in and out of jail for breaching his parole, no doubt only exacerbated' her drug problem.[60]
50 The sentencing judge observed that, unlike Alexander and Hanna Semaan, Beljulji had no prior convictions.[61]
51 On Beljulji's prospects of rehabilitation, the sentencing judge said that Beljulji was relatively young and, over the years, had shown an ability to hold down work. The judge cited her lack of prior convictions and her supportive family in concluding that she had good prospects of rehabilitation. Accordingly, said the judge, specific deterrence did not assume the importance that it might otherwise have had in sentencing her.[62]
52 The sentencing judge further considered the role of general deterrence and made mention of Beljulji's lack of remorse. He said:
But general deterrence must figure prominently in the sentences I impose. You attempted to pervert the course of justice in relation to a murder trial. You did so knowing or believing that [Alexander] shot Bekhazi. You tried to get the main prosecution witness to change his story. When that failed, you continued your attempt to pervert the course of justice by putting police onto a false trail of evidence.
Further, you ran your trial. You are not to be punished for that but there is no discount for a plea of guilty. Nor have you displayed any remorse.[63]
53 Finally, in framing the severity of the sentence to be imposed on Beljulji, the sentencing judge observed:
As conceded by your counsel, there must also be a measure of cumulation in the sentences I impose, because the interference with the witness (Charge 2) and the putting of the police onto a false trail of evidence (Charge 3) were discrete pieces of conduct. But your sentence on Charge 2 will be less than Hanna's because you have no prior convictions and you played a more limited role.
As I indicated with Hanna Semaan, I consider that a CCO combined with a sentence of imprisonment is out of the question because a total effective sentence of greater than 2 years imprisonment is required.[64]
54 Beljulji has proposed the following three grounds of appeal:
55 In her written submissions on the proposed ground of manifest excess, Beljulji contended that her sentence is outside the range of sentencing options available for the offence of attempting to pervert the course of justice. Beljulji referred to the table of cases attached to the report in Tognolini[65] and the decision in Buscema.[66] In his oral submission, counsel for Beljulji sought to distinguish the attempt to pervert the course of justice in Tognolini from that in the present case on the basis that: (a) in Tognolini, the attempt constituted a series of acts (as opposed to an isolated instance of offending); and (b) violence (in that the offender intimidated one of the girls that he took to the solicitor's office) was an aggravating factor in that case. Ultimately, Beljulji argued that the offence of attempting to pervert the course of justice covers a very wide range of behaviours and that her behaviour was at the lower end of the spectrum.[67]
56 In relation to the second proposed ground, Beljulji drew attention to the sentencing judge's view that: (a) Beljulji's interference with Kanaan was a mid-range example of the offence of attempting to pervert the course of justice, for most of the reasons that he gave in his sentencing remarks regarding Hanna Semaan;[68] and (b) Beljulji played a lesser role as she was involved in one confrontation only, and Hanna Semaan did all the talking on that occasion.[69] Beljulji contended that the three-month difference between the sentence imposed on Hanna Semaan and the sentence imposed on Beljulji on charge 2 'does not adequately reflect the significant differences in the nature of [Beljulji's] offending behaviour and her personal circumstances.' She pointed to three factors in support of this contention.[70] First, Beljulji said that she did nothing, and said nothing, while Hanna Semaan was talking to Kanaan; yet, as Beljulji acknowledged in her written submissions, her participation can be inferred by the fact that she found out the details of solicitors who could assist Kanaan with changing his statement.[71] Second, unlike Hanna Semaan, Beljulji had no prior convictions. Third, the sentencing judge considered that Beljulji had good (and, compared to Hanna Semaan, better) prospects of rehabilitation.
57 In relation to the third proposed ground, Beljulji contended that the sentencing judge allowed the gravity of the charge against Alexander Semaan to 'infect' his sentencing discretion against Beljulji. Beljulji emphasised the sentencing judge's remark that the criminal prosecution that she attempted to pervert was a prosecution for murder, 'the most serious offence there is'[72] and his later observation that she attempted to pervert the course of justice 'in relation to a murder trial'.[73] In the event, Beljulji argued that these remarks not only contextualised her sentence, but treated Alexander Semaan's offending as an aggravating factor.
58 It does not seem to me that the first proposed ground is reasonably arguable. As has already been discussed, the maximum penalty of 25 years' imprisonment indicates the seriousness with which Parliament has assessed the offence of attempting to pervert the course of justice. In the present case, the conduct of Beljulji was serious: it was calculated to pervert the course of justice in relation to a charge of murder, the details of which were particularly gruesome.[74] In my opinion, in view of the authorities discussed above,[75] the individual sentence of two years and nine months' imprisonment was within range.
59 To establish the second proposed ground, Beljulji must establish that the disparity between her sentence and that of Hanna Semaan was manifestly excessive and that it engenders a justifiable sense of grievance and gives the appearance that justice has not been done.[76]
60 Recently, in Nguyen v The Queen,[77] Priest and Coghlan JJA (with whom Kaye JA agreed) said:
Equality before the law - a concept of fundamental importance - finds expression in the principle of parity. Mason J made the point in Lowe:[78]
Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.
And in Green,[79] French CJ, Crennan and Kiefel JJ observed:[80]
The parity principle will require the Court, if it is possible to do so, to avoid or minimise unjustified disparity between the sentence it imposes and the sentence which has been imposed on a co-offender. In so doing, the Court, like the primary judge, must have regard to differences between the person being re-sentenced and the co-offender which justify differences in the sentences imposed.
But as was observed in Wong:[81]
Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.
Moreover, French CJ, Crennan and Kiefel JJ also said in Green:[82]
Because appeals are creatures of statute, the parity principle in appeals against sentence arises in a statutory context. The jurisdictions to entertain such appeals, conferred by statutes on courts of criminal appeal in Australia, are supported by powers to increase or reduce sentences affected by appealable error. In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may 'reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender'. The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen:[83]
the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.
The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.[84]
61 It does not seem to me that the second proposed ground is reasonably arguable. While it can be accepted that the involvement of Beljulji may have been of a lesser degree than that of Hanna Semaan, it still involved a degree of pre-meditation and sophistication. Like Hanna Semaan, Beljulji knew that Alexander Semaan had murdered Bekhazi, and there was no evidence of remorse. Although Beljulji was involved in only one confrontation, and Hanna Semaan did all the talking on that occasion, Beljulji was a principal in the effort to have a witness to an execution change his evidence. She was the one who took the significant step of finding the details of solicitors to take a statement that she knew to be false. In crimes such as the present, general deterrence is very important when it comes to sentencing; an example must be made of those found guilty.
62 It does not seem to me that the third proposed ground is reasonably arguable either. In his oral submissions, counsel for Beljulji acknowledged that the murder charge is, in the words of Kyrou JA in Oksuz, 'relevant to assessing the seriousness' of the attempt to pervert the course of justice;[85] however, counsel said that the sentencing judge erred in treating the murder charge against Alexander Semaan as an aggravating (as opposed to a relevant) factor. In my opinion, the distinction employed is artificial and without substance. It was perfectly proper for the sentencing judge to take into account the gravity of the criminal conduct the prosecution of which Beljulji was attempting to pervert. I reject the submission that the sentencing judge allowed the gravity of the charge against Alexander Semaan to 'infect' his sentencing discretion against Beljulji.
64 In the result, I would refuse each of the applicants leave to appeal against sentence.
[1] Semaan v The Queen; DPP v Semaan [2017] VSCA 261 (Priest, Beach and Hansen JJA).
[3] R v Semaan [2016] VSC 667 ('Sentencing remarks').
[8] This is the date referred to in Sentencing remarks [15].
[9] At trial, the prosecution relied on this conduct as further incriminating conduct on the part of Alexander Semaan. During the trial, counsel for Alexander Semaan adduced the photographs of the bullet damage to the shed, which he claimed were consistent with an armed intruder having fired a shot in the bathroom on 1 December 2014, that shot having penetrated the painting that had been covering the window between the bathroom and the shed (Sentencing remarks [15]-[16]). In this regard, the sentencing judge concluded (at [17]): 'By its verdict, the jury clearly rejected your story about an armed intruder murdering Bekhazi. No doubt, your desperate attempts to bolster that story, by arguing that investigators had missed bullet damage, backfired'.
[10] At trial, the sentencing judge largely accepted Kanaan's version of events about what had happened when he returned to 137 Donald Street the day after the shooting. However, the judge was not satisfied that Hanna Semaan suggested to him that he should tell police that there was an unknown intruder or intruders who must have shot Bekhazi, as Kanaan testified at trial; Kanaan did not make this assertion in any of his police statements. The sentencing judge considered it more likely that Hanna Semaan suggested this to Kanaan at a subsequent encounter on 15 December 2014, which is elaborated below (Sentencing remarks [58]).
[13] Ibid [61]-[62]. In concluding his remarks on the factual circumstances, the sentencing judge said: 'The prosecution did not seek a finding that [Hanna Semaan was] a party to Diab's assault of Kanaan, although they did assert, reasonably in my view, that Diab's attendance was not coincidental. As conceded by the prosecution, it is reasonably possible that Diab may have acted unilaterally when he assaulted Kanaan before [the applicants] arrived. Kanaan testified that, at the confrontation on 15 December, [Hanna Semaan] threatened to have him killed. As I indicated at the plea hearing, I cannot be satisfied beyond reasonable doubt that such a threat was made, having regard to the fact that I am satisfied that Kanaan did not mention it to the informant the next day and did not mention it in the two police statements he made thereafter.'
[14] Ibid [14]. The sentencing judge said that, on the night of the shooting, the painting had been covering up a bathroom window.
[32] Transcript of Plea, R v Semaan (Supreme Court of Victoria, Beale J, 24 October 2016) 58.
[35] In this regard, she made reference to the decisions in Tognolini v The Queen [2011] VSCA 113; (2011) 32 VR 104; DPP v Josefski [2005] VSCA 265; (2005) 13 VR 85; DPP v Aydin [2005] VSCA 86; R v Aydin [2005] VSCA 87; Saleem v The Queen [2014] VSCA 190; Zotos v The Queen [2014] VSCA 324; Byrne v The Queen (2015) 73 MVR 350; and R v Buscema [2011] VSC 206.
[36] (2015) 47 VR 731 ('Oksuz'). The Registrar also advised the parties that they may file, in advance of the hearing of the present applications for leave to appeal, a written submission with respect to that decision. In the event, Beljulji and the Crown filed written submissions.
[37] In his oral submissions, counsel for Hanna Semaan referred to a series of sentences imposed in the District Court of Queensland on two brothers who pleaded guilty to attempting to pervert the course of justice, among other offences. Notably, it was a murder charge against their father that was the catalyst for the offending. In each case, it appears that there were circumstances that mitigated the moral culpability of the offender. Counsel submitted that the case served to demonstrate the permissible range of sentencing options where the conduct involved an attempt to pervert the course of justice with respect to murder.
[38] [2011] VSC 206 ('Buscema').
[40] R v Boaza [1999] VSCA 126 [42]. See also DPP (Cth) v Brown [2017] VSCA 162 [55]-[59].
[41] [2011] VSCA 113; (2011) 32 VR 104 ('Tognolini').
[42] Ibid 106 [1], [5]. The offender had been charged with what was then known as maintaining a sexual relationship with a child under the age of 16 contrary to s 47A of the Crimes Act 1958. At trial, the jury acquitted the applicant on that count but convicted him, pursuant to s 47A(5), of an alternative count of committing an indecent act with a child under 16.
[45] Oksuz (2015) 47 VR 731, 738-9 [23].
[48] Ibid 753-6 [95]-[105] (citations omitted).
[50] Oksuz (2015) 47 VR 731, 754 [97]. In his oral submissions, counsel for Hanna Semaan labelled as 'serious' the offences in Oksuz that precipitated the attempt to pervert the course of justice in that case, namely blackmail and reckless conduct endangering life. He did so in an attempt to explain the sentence of four years' imprisonment that was ultimately imposed in that case. Plainly, the seriousness of the relevant offences committed in Oksuz was less than that of the murder committed by Alexander Semaan.
[60] Ibid [89]. On that note, the sentencing judge concluded (at [90]): 'Since being remanded in custody towards the end of the trial, you claim to have ended your relationship with [Alexander] and to have abstained from drugs. I hope you maintain that resolve. Although the strains in your familial relationships have been on display throughout these proceeding, your family is supportive.'
[66] [2011] VSC 206. She also referred to the unpublished reasons in Nikaj v R (S APCR 2012 0101), which was an application for leave to appeal against sentence determined by Weinberg JA under s 315 of the Criminal Procedure Act 2009.
[67] In his oral submissions, counsel for Beljulji referred to DPP v Cardamone (unreported, County Court of Victoria, Judge Mullaly, 22 September 2017), in which the aged mother of a murderer pleaded guilty to attempting to pervert the course of justice. In that case, the sentencing judge pointed out: (a) that the offending 'was at the lower end of the scale'; (b) the exceptional circumstances of the offender; and (c) the need for mercy towards 'the very young, the very old and the sick'. In the event, the sentencing judge accepted a submission jointly made by the Crown and the defence that the sentence should extend no further than time served, which was 141 days' imprisonment.
[70] Separately, Beljulji said that her drug use ended when her relationship with Alexander Semaan ended and, relying upon the report that her counsel tendered on the plea, that she remains in need of ongoing treatment for anxiety, depression and her abstinence from illicit substances.
[74] See R v Semaan; DPP v Semaan [2017] VSCA 261. See [62] below.
[76] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 610 (Gibbs CJ).
[78] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 610-1.
[79] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462.
[81] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 608 [65] (Gaudron, Gummow and Hayne JJ) (emphasis in original).
[82] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 474-5 [31].
[83] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 610.
[84] Nguyen v The Queen [2017] VSCA 262 [25]-[28].
[85] Oksuz (2015) 47 VR 731, 754 [97].
(2011) 32 VR 104
(2005) 13 VR 85
(2015) 73 MVR 350
(2001) 207 CLR 584
(2015) 47 VR 731
(1984) 154 CLR 606
(2011) 244 CLR 462