Farah v The Queen [2019] VSCA 300

Ms A Hogan, Acting Solicitor for Public Prosecutions

1 On 11 April 2019, the applicant pleaded guilty to a single charge of conspiracy to commit common assault.[1] This offence carries a maximum penalty of 5 years' imprisonment.

2 On 16 August 2019, the applicant was sentenced to a term of 9 months' imprisonment, in combination with a 3 year Community Correction Order ('CCO'). It should be noted that the terms of that order concerned supervision, treatment and rehabilitation. There were no work requirements.

3 The applicant now seeks leave to appeal against that sentence. There are three proposed grounds of appeal. They are as follows:

Ground 1 - The Learned Sentencing Judge erred in sentencing the Applicant on the basis that:

1. there was an intention to cause injury to the proposed victim; and
2. the scope of the agreement could be clearly assessed by reference to an intercepted phone call in which - as a result of the "serious assault" that was planned - the proposed victim would not be able to hold scissors anymore.

Ground 2 - The sentencing discretion has miscarried in circumstances where the Learned Sentencing Judge had indicated that he did not want to hear further submissions from the Applicant's counsel - but then proceeded to impose a 9 month period of imprisonment upon the Applicant - in circumstances where it had been previously submitted on behalf of the Applicant that he should not be returned to prison.

Ground 3: The Learned Sentencing Judge erred in his approach to section 5(4) of the Sentencing Act 1991 (Vic).

4 For the reasons that follow, we would grant leave to appeal on grounds 1 and 2, but not ground 3. We would set aside the sentence imposed below, and resentence the applicant to 6 months' imprisonment, but would not impose a CCO.

5 The applicant was at all material times the owner and operator of 'The Fruitful Shop', located in Toorak Village. It appears that he was feuding with one Nadar Kajajo, who was to be the victim of the conspiracy. Kajajo operated a business called 'The Prestige Barber' closely adjacent to the applicant's fruit shop. The details of that feud did not emerge with any clarity. In any event, those details did not feature in the reasons for sentence below.

6 A co-conspirator, Feres Al-Janabe, knew the applicant through a mutual friend, Khaled Ali. In 2017, a joint organised crime taskforce, of the Victorian Police, came to suspect Al-Janabe of trafficking in large quantities of methamphetamine. On 24 November 2017, warrants were obtained to intercept communications involving two mobile phones owned by Al-Janabe, and those communications were thereafter monitored.

7 Between 30 April 2018 and 23 July 2018, there were a number of discussions over the phone between the applicant and Al-Janabe regarding Kajajo. During the course of those discussions, it became clear that the applicant was seeking to have Kajajo assaulted in some way. The applicant provided Al-Janabe with Kajajo's work address, his home address, and his movement patterns. Al-Janabe agreed to conduct surveillance upon Kajajo. He said that he would engage others to carry out both the surveillance and the ultimate assault. There was discussion between them as to the time and place of the assault. Included in those discussions were references to the possibility that Kajajo might be detained in some way, either before or after the assault. In other words, the discussions suggested that he might be kidnapped. There were also discussions about Al-Janabe receiving payment for arranging for the assault to take place.

8 In one of the monitored conversations, Al-Janabe said to the applicant that the assault would mean that Kajajo would 'not be able to hold scissors in his hand any more'.

9 On 29 July 2018, the applicant was arrested at his shop and his two mobile phones seized. He was eventually granted bail on 1 October 2018, after having been in custody for 71 days.

10 When sentenced, the applicant was aged 36. He had no relevant criminal history, and no recorded convictions. There was a body of material to indicate that he had previously been of good character, with a solid work record. In general terms, he was a devoted husband and father.

11 The applicant was born in Lebanon, where his parents and sister still live. He has three brothers, who live in Australia, one in Sydney and two others in Victoria. He was educated in Lebanon, having completed Year 10. He then worked in a takeaway food shop for a time and served in the Lebanese Army for about four years. He came to this country, with his wife, Dianne Farah, when he was aged 21.

12 Initially, after his arrival in Australia, the applicant worked with his wife's family in various fruit shops. He then leased a takeaway shop in Pakenham, where he worked for some two and a half years. When the couple's first child was born, the applicant acquired the fruit shop in Toorak Village. Three years later, he and his wife opened a café opposite the fruit shop, and thereafter ran the two businesses.

13 The applicant and his wife have three children. The eldest is aged 11. He appears to have autism spectrum disorder. There are also two daughters, one aged 7, and one aged 18 months.

14 Importantly for present purposes, the applicant's wife has significant physical and mental health issues. There is evidence that she experienced depression and suicidal ideation after the applicant was taken into custody.

15 As a result of the applicant's incarceration, the fruit shop business closed down. The applicant and his wife will have to sell the café in Toorak Village, though they have since purchased another café in Keilor East.

16 The applicant consented to a Personal Safety Intervention Order being made against him, for the protection of Kajajo. This was said to demonstrate his willingness to take responsibility for his actions. He also pleaded guilty to the conspiracy to commit common assault at the earliest practical opportunity.

17 During the course of the plea, the applicant's counsel submitted that it would be particularly burdensome for him to be returned to prison, after he had been released on bail, given the potential deterioration of his wife's health, and the family's other difficulties. It was submitted that the 71 days spent in custody, combined with a CCO, would meet all of the requirements of both general and specific deterrence, as well as denunciation and adequate punishment.

18 As will be seen, when we consider proposed ground 2, the prosecution ultimately, though belatedly, submitted that although a combined sentence would be reasonably open to the sentencing judge, the offending was too serious to accede to the submission that time served was sufficient.

19 The sentencing judge dealt with both Al-Janabe and the applicant at the same time. Al-Janabe, however, faced a far more serious charge of trafficking in a large commercial quantity of methylamphetamine, as well as a series of other related charges, none of which had anything to do with the applicant. He was also, of course, dealt with for the conspiracy with the applicant to commit a common assault. We should emphasise that the applicant was not, in any way, involved in or implicated in Al-Janabe's drug related activities.

20 Al-Janabe was sentenced to a total effective term of 11 years and 10 months' imprisonment, with a minimum term of 8 years. It is unnecessary to go into any detail as to how that overall sentence was achieved. Certainly, the sentence for the drug component of his offending, on its own, was 10 years' imprisonment. In addition, a further 6 months' imprisonment was cumulated for possession of a controlled weapon. There was also a sentence of 1 month's imprisonment for having committed an offence whilst on bail.

21 Al-Janabe's sentence was complicated somewhat by the fact that his drug offending fell within the standard sentence regime. There were also other factors which made his sentencing for the offences, other than the conspiracy to commit common assault, somewhat complex. It is sufficient for present purposes to note that Al-Janabe was sentenced to a term of 12 months' imprisonment for the conspiracy, as compared with the 9 months and a CCO given to the applicant for that offence.

22 In dealing with the applicant, his Honour observed that it was he who had recruited Al-Janabe to carry out an assault upon the victim.

How, why and what their connection was I am uncertain, however, what was discussed between them was some form of assault, detention or kidnapping. They were both arrested on [23] July of that year which averted their plans.[2]

[61] The offending is detailed in the prosecution summary from [12] to [74]. To say the least it was persistent. It beggars belief in some regards. One wonders at some stage whether Mr Al Janabe is really taking Mr Farah for a ride, but one can only rely on the discussion between them.

[62] But allegedly Mr Al Janabe, having been recruited by Mr Farah, hired or got associates to try and arrange a situation where the other shopkeeper, Mr Kajojo, would be attacked in some way.

[63] During this period, as I said, the police, in fact, spoke to an associate and that was on 8 May 2018. Mr Al Janabe, in fact, told Mr Farah about the police intervention. However, despite that by 16 May the plot was on again, when the deposit was in fact paid for this job in the sum - have I got this right, Mr Prosecutor, was it $10,000?

[64] MR COOKSON: I'll confirm that, Your Honour.

[65] HIS HONOUR: I think it was, was it not? Yes. Was paid by Mr Farah to Mr Al Janabe. The scheme then persisted through until, as I said, they were arrested. As I said, whether Mr Al Janabe ever intended to carry out his side of the bargain, whether in fact he did, what he said to Mr Farah, I do not know. However, by the plea, and acceptance of your counsel of the facts, such is before the Court as fact.

[66] However, assessing the intercepted calls the intent is clear. In the conversation of 3 June 2018 ... the scope of the endeavour is clear. That is they discussed the fact that the fellow shopkeeper, as a result of what Mr Al Janabe's going to do to him on behalf of Mr Farah, will not be able to hold scissors in his hands anymore. The importance of that, of course, is to understand that the proposed victim's occupation, was a barber, hence clearly a serious assault was planned.[3]

25 His Honour then referred to a victim impact statement dated 22 May 2019, as well as further 'matters' that had been put that morning, just before he proceeded to sentence the two offenders. It is tolerably clear that within that term 'matters', so far as the applicant was concerned, there was embodied the submission made by Mr Cookson on behalf of the Crown that, although a combination sentence was open, the period of 71 days already served was not sufficient, and that a further custodial term was warranted. This was said by Mr Cookson to be, by virtue of the gravity of the offending and, in particular, the level of planning involved. The conspiracy took place over a period of time and, it was said, continued at the urging of the applicant, who was characterised as the instigator.

26 Essentially, that submission by Mr Cookson was the only statement of the Crown's position regarding the sentence to be imposed upon the applicant. During the entire course of the plea, which itself had been conducted over several days. It had commenced on 11 April 2019, and continued on 23 May 2019, before finally concluding on 16 August. It should be noted that Mr Cookson's submission to the effect that the applicant should be returned to custody came at the very end of the proceeding, on that day, literally moments before his Honour began sentencing the applicant and his co-offender.[4]

27 In response to Mr Cookson's submission regarding the need for additional time to be served, the transcript reveals that Mr Dann was invited, it would seem for the first time, to comment upon the Crown's stated position just as the applicant was about to be sentenced. The transcript indicates that his Honour was about to impose a sentence on each accused (though having only just heard what the Crown had to say regarding the applicant's submission that time served was sufficient), when Mr Dann rose to his feet to speak.

MR DANN: What my learned friend said about that victim impact statement, we don't seek to launch into a dispute about that. We'll just let that pass for the moment. Your Honour, if you want me to respond to anything that was put there, I will, but otherwise, just as a practical matter, I may be required - well, I am required a little bit later, so I'll stay as long as I possibly can, hopefully to complete the sentence.

HIS HONOUR: It will probably take me to at least half past 10, if not more.

MR DANN: That should be fine. But if I do have to leave, I seek leave for my instructor then to assume the - - -

HIS HONOUR: Yes, I'm used to him appearing in this court.

MR DANN: If Your Honour pleases.

HIS HONOUR: All right, thank you all for that. Gentlemen, there's a number of matters, as you might have already heard that I have to go through, so you can remain seated until I finally ask you to stand.

(SENTENCE FOLLOWS)[5]

29 What emerges from this passage is that Mr Dann, having previously presented lengthy and comprehensive submissions as to why no additional custodial period was required (beyond the 71 days already served), seemingly assumed that his submissions in that regard had been accepted. The Crown had put forward a brief, if not perfunctory, submission to the effect that more time was required. It might be thought that this was argument by assertion, unsupported by much in the way of reasoning.

30 Reading the transcript, it is difficult to avoid the conclusion that it would have come as something of a surprise to the applicant's legal advisers that their client was now to be returned to prison, and for a substantial term. The 9 month sentence that was imposed came tolerably close to the 12 month period that was the maximum that could have been imposed in combination with a CCO.

31 Nothing had been said by the prosecutor who appeared on the plea on 23 May 2019 to controvert, in any way, the submission then made by Mr Dann that 71 days, combined with a CCO, would be sufficient. Nor had the sentencing judge given the slightest indication that he might be of that opinion. All that he had said on that day was that he had not come to a final conclusion as to whether a combination sentence would be appropriate.

32 It is in the light of these matters that ground 2 has been formulated, and pressed before this Court.

33 It was submitted on behalf of the applicant that he fell to be sentenced for the offence of conspiracy to commit a common assault, and for no other offence. The maximum penalty for conspiracy to commit a common assault is 5 years' imprisonment. In the course of the plea, Mr Dann, on several occasions, urged his Honour to exercise great care in not sentencing the applicant for more serious, but uncharged, offences. These would include conspiracy to intentionally cause injury, conspiracy to intentionally cause serious injury, or conspiracy to kidnap.

34 It was submitted, on the plea, that given that these more serious offences carried significantly heavier penalties (10 years', 20 years', or 25 years' imprisonment respectively), it was essential that his Honour exercise great care in order to avoid falling into the error of treating some of the matters raised in the prosecution opening as though they gave rise to these more serious offences.

35 Mr Dann had raised these very concerns with the prosecutor right at the outset of the plea. The prosecutor who appeared on 23 May 2019 was fully cognizant of the need to exercise such care. Indeed, the transcript of the proceeding of that day indicates that Mr Dann reminded his Honour repeatedly to be careful when dealing with matters such as 'kidnapping', which appeared in the prosecutor's opening. The applicant was pleading guilty to a conspiracy to commit a common assault, and nothing more. In that sense, he was acknowledging only that he had entered into an agreement to physically assault Kajajo, but not anything more than that.

MR DANN: Yes, so I understand my learned friend relies on those references as context but certainly not asking you to incorporate any aspect of kidnapping into this sentencing - - -

HIS HONOUR: You accept that, Mr Prosecutor?

MR SINGH: Absolutely.[6]

37 Moments later, the prosecutor returned to the use that could be made of some of the statements recorded in the intercepted telephone communications. He repeated that although those conversations suggested that the victim would be 'taken', such references should be regarded as 'contextual' alone. That concession (if that is what it was) led to the sentencing judge stating:

However, the purpose was the undertaking of the assault.[7]

38 In other words, the prosecutor eschewed any reliance upon the intercepted material as suggesting that the applicant actually contemplated inflicting serious injury, or kidnapping the victim. In relation to that latter matter, this was both because any such discussions were of a 'conditional' nature,[8] and because it would be wrong in principle to treat a contemplated kidnapping, even one as ephemeral as this appeared to be, as an 'aggravating' feature of the actual conspiracy charged.

39 We interpolate to say that characterising the relevance of the references to serious injury, and kidnapping as 'contextual' seems to us to have been less than helpful. If those references had any real relevance to the gravity of the actual offending charged, they would have to have met the requirements of being circumstances of aggravation. However, they might then run directly into, and up against, well established principles preventing them from being taken into account in that way.[9]

40 As indicated, the references to kidnapping were not the sole source of difficulty. In the course of his sentencing remarks, when dealing with Al-Janabe, his Honour said:

As I have already remarked in Mr Farah's sentence, it was the intent of both of you, to injure the proposed victim. You proposed to do this and were paid money to do so. Again as I remarked, you did this while on bail, and you did this in circumstances where you had previously been sentenced and given opportunities. Again, such is remarkable to me.[10]

41 As previously indicated, there is a key passage in his Honour's sentencing remarks concerning the applicant's actual intent. He refers to a conversation dated 3 June 2018 between the applicant and Al-Janabe which makes 'the scope of the endeavour' clear. This is the discussion, in the course of which, Al-Janabe tells the applicant that the effect of the assault will be that Kajajo will not be able to 'hold scissors in his hands any more'. In his Honour's terms, the importance of that particular discussion 'is to understand that the proposed victim's occupation was a barber, hence clearly a serious assault was planned'.

42 In summary, it was submitted on behalf of the applicant that his Honour fell into specific error by, effectively, sentencing the applicant for a different and more serious offence, at the very least a conspiracy to intentionally cause injury, but possibly more than that rather than for the offence for which the applicant was to be dealt with.

43 It was submitted that Mr Dann had foreshadowed from an early stage, on 23 May 2019, that he would seek to persuade the sentencing judge to impose a CCO as an alternative to any further period of imprisonment. That submission was forcefully maintained throughout the entire lengthy plea hearing on that day. At that stage, the applicant was ordered to be assessed for a CCO, and Mr Dann reserved the right to make further submissions on the next return date after the assessment report had become available.

44 The sentencing judge indicated he would hear from both sides as to the final disposition of this matter, once the CCO report had been obtained.

45 On 16 August 2019 (that being the third and last of the three days set aside for the plea hearing), and the day on which both accused were, in fact, sentenced, his Honour initially indicated that he had received the CCO assessment for the applicant, and that it was positive.

46 It was at that point that the prosecutor who appeared on that day, Mr Cookson, indicated after a lengthy submission regarding other matters, that he sought to be heard regarding the applicant's situation. Only then, and for the first time, did the Crown indicate that although it conceded that a combination sentence was open, the period of 71 days, as time served, was not sufficient.

47 At that very moment, his Honour appeared to be about to launch straight into his sentencing remarks, which were obviously pre-written, and carefully prepared. Mr Dann interrupted his Honour to ask whether he wanted to hear any further submissions on behalf of the applicant in response to what had just been put by the prosecutor moments earlier. It is plain from what Mr Dann said at that time that had the sentencing judge indicated that he wished to hear further submissions from the defence in response to what Mr Cookson had just put, Mr Dann would have put further submissions in opposition to any additional term of imprisonment being required to be served.

48 It was submitted on behalf of the applicant that up to that point, his Honour had not suggested, at any stage, that he might be contemplating imposing any further period of imprisonment. As indicated, the brief submission put by the prosecutor, moments earlier, was the first intimation that the Crown's position was that there should be an additional custodial term, beyond time served.

49 It was submitted that once his Honour has determined that he would reject the time served submission, he ought to have indicated, in some way, to Mr Dann that this was his provisional view. Instead, by what he said, and did not say, he conveyed the impression that he did not wish to hear any further submissions on this point. Indeed, we were told from the bar table this morning that when Mr Dann asked whether his Honour wanted further submissions in relation to the matters raised earlier, the sentencing judge shook his head. Mr McWilliams, who viewed the recording of the process on 16 August 2019, accepted that this was an accurate account of what took place.

50 Mr Dann submitted before this Court that there was an obvious answer to the Crown's belated, and extremely brief, submission that the applicant should go back into custody. The argument could have been put that a longer than normal CCO should be ordered, together with a significant component of unpaid work. This would have met all the requirements associated with the need for just punishment. It was submitted that the applicant had been denied the opportunity to seek to persuade his Honour of the appropriateness of that course.

51 This proposed ground seeks to invoke s 5(4) of the Sentencing Act 1991, which requires that a period of imprisonment be the stage of last resort. Once again, it was submitted that a condition of unpaid community work could easily have met the requirements of just punishment, had such a condition been imposed.

52 The respondent submitted that the sentencing judge had been fully cognizant throughout of the fact that the offence for which the applicant was to be sentenced was conspiracy to commit a common assault, and not any more aggravated form of that offence. In support of that submission, the respondent referred to [62] of his Honour's sentencing remarks.[11] Further, it was submitted that his Honour's comment that 'a serious assault was planned'[12] was no more than a 'passing remark' and did not breach the principle established in R v De Simoni ('De Simoni').[13]

53 The respondent also referred to the decision of this Court in DPP v Fabriczy.[14] In that case, the Court said:

The extent of the offender's participation in the combination, established by reference to his or her individual acts and declarations, will inform but not determine the conclusion as to the offender's degree of criminality. The individual offender is to be punished for involvement in the conspiracy and not just for the acts that he or she performed. The sentencing judge therefore needs to assess, for the purpose of sentencing the individual conspirator, the 'content and duration and reality' of the conspiracy, and what is actually done in transaction of it, as well as the role of the offender before the court.[15]

54 In applying this principle, the respondent submitted that the judge below correctly considered the following significant factors in sentencing the applicant:

• the applicant's role as the instigator of the conspiracy;
• the duration of the conspiracy;
• the degree of planning;
• payments made by the applicant to the co-offender; and
• the persistence of the applicant, even when faced with the prospect of police intervention.

55 When Mr Dann first sought to have his client assessed for a CCO on 23 May 2019, the sentencing judge said:

I'm happy to order an assessment in those circumstances, Mr Dann, but I think as you will make clear to your client that doesn't in any way indicate I've finalised a determination in the matter.[16]

56 The respondent noted that once the CCO assessment report had been received, his Honour described it as a 'positive Community Correction report'. It was submitted that this was, in no way, an indication that his Honour would accede to Mr Dann's submissions in a manner favourable to the applicant. Moreover, it was submitted that this statement did not indicate that his Honour's position had changed from what was said on 23 May 2019.

57 In response to this ground, the respondent contended that Mr Dann had been on notice throughout the course of the plea that the sentencing judge had not expressly or implicitly accepted his submissions regarding time served. Further, it was submitted that his Honour had not prevented Mr Dann from making any further submissions on any relevant matter, if he wished to do so. As such, the sentencing judge had not failed to afford the applicant procedural fairness.

58 The respondent submitted that the applicant's offending was a serious example of a conspiracy to commit common assault. Counsel pointed to the applicant's role as the instigator of the conspiracy, the duration of the conspiracy, and the surveillance that had been conducted on Kajajo and his family. It was submitted that when these matters were balanced against the mitigating factors raised by the applicant, the imposition of a sentence of imprisonment beyond the period of pre‑sentence detention had not breached the 'principle of last resort'.

59 It was therefore submitted that there was nothing about the sentence imposed that would suggest that the sentencing judge erred in the application of s 5(4) of the Sentencing Act. Further, it was noted that Mr Dann had sensibly conceded that a sentence of imprisonment was open, as it clearly was. The respondent then noted that the applicant's real complaint under this proposed ground was that the period of imprisonment was too long, or, in effect, manifestly excessive. In that sense, this was not really a complaint of specific error, but a different argument altogether.

60 This proposed ground of appeal invokes what is generally described as the rule in De Simoni.

61 Circumstances of aggravation which, in themselves, amount to a discrete and serious crime that could have been made the subject of a separate charge but were not so charged, cannot be relied upon as aggravating factors in fixing sentence. So, for example, in R v Newman ('Newman'),[17] it was held that a sentence imposed for aggravated burglary included within the sentencing remarks, and the sentence itself, a component for an aggravated assault on a person within the house in respect of which the accused had not been charged.

62 There will often be only a fine line between treating a particular fact as an aggravating circumstance (which may be permissible) and acting in contravention of both De Simoni and Newman.

63 In the present case, the applicant submitted that this line had been well and truly crossed. Plainly, there is a significant difference between a conspiracy to commit a common assault,[18] and various gradations of conspiracy, well above the offence to which the applicant pleaded guilty. He could have been charged with conspiracy to cause injury, intentionally, which carries a maximum penalty of 10 years' imprisonment, but that would require proof of an actual intent to injure as distinct from apply some form of force.[19] He could, perhaps, have been charged with conspiracy to cause serious injury, intentionally, which carries a maximum penalty of 20 years' imprisonment, but there was little in the evidence to support that offence.[20] Indeed, on one view, he could have been charged with conspiracy to kidnap, which carries a maximum penalty of 25 years' imprisonment.[21] That, however, would have been an extreme stretch.

64 The prosecution, by charging only conspiracy to commit common assault, plainly eschewed any reliance upon matters such as the references to causing serious injury, or kidnapping. The prosecutor on the plea, on 23 May, made it abundantly clear that this was so when he said that these aspects of the recorded conversations between the applicant and Al-Janabe, were relied upon by way of 'context' only (whatever that may have meant).

65 In these circumstances, and particularly having regard to senior counsel's repeated admonitions to the judge to be careful not to sentence the applicant in a manner that might contravene De Simoni, it should have been clear that caution was required. This was not just in the language used in the sentencing remarks, but in the actual choice of sentence ultimately imposed.

66 In that regard, his Honour's reference to 'the scope of the endeavour' being clear, immediately followed by the reference to Kajajo not being able 'to hold scissors in his hands anymore', tellingly suggested not just that a 'serious assault was planned', but one with serious consequences.

67 It is true that the sentencing judge did not say, in terms, that the assault that was planned involved the actual infliction of serious injury. Nonetheless, it seems to us that a fair reading of his Honour's observation regarding the 'scope of the endeavour' was that he had in mind a conclusion broadly to that effect.

68 The sentence actually imposed seems to reflect just that conclusion. On any view, a sentence of 9 months' imprisonment, followed by a 3 year CCO (albeit without work requirements), is a 'fair way up the scale', as compared with the treatment normally afforded to someone convicted only of either common assault, or conspiracy to commit common assault.

69 We do not cavil with a conclusion that, as a matter of common sense, this conspiracy was intended, at least from the applicant's point of view, to result in some form of physical attack upon the victim. It was not a conspiracy intended only to put the victim in fear (though that would be a conspiracy to commit common assault). But there are limits to how far a sentencing judge can legitimately go without infringing upon the basic De Simoni principle. In this case, those limits were exceeded.

70 There being established specific error, of a material kind, the sentencing discretion was vitiated, and as is ordinarily the case, the applicant would stand to be resentenced.

71 Having regard to the mitigating factors that were present below, we consider that a different and lesser sentence was warranted. We would not, ourselves, have concluded that the 71 days that the applicant had served before he came to be sentenced was sufficient, though, as will be seen, there was reason for Mr Dann to believe that the judge had accepted that submission.

72 It was submitted that it had been foreshadowed from an early stage that the applicant had served sufficient time in custody to justify a CCO, without his having to be returned to prison. That was the entire gist of the plea on 23 May 2019.

73 The prosecutor said nothing, on that day, to indicate that the Crown considered that, although a CCO would be within range, the 71 days was not sufficient. In these circumstances, it was submitted that Mr Dann was entitled, when he attended again on 16 August 2019, to anticipate that the judge would not take the step of requiring the applicant to be returned to prison for a period of perhaps some months. For one thing, it might be thought that this would be a fairly pointless exercise, particularly having regard to the weight of the evidence as to the extra‑curial punishment that the applicant had suffered by the effects of his incarceration upon his wife and family, and the loss of their business.

74 It was against this background that the prosecutor who appeared on 16 August 2019, submitted, as we have said, in the briefest of terms, that although a combination sentence might be within range, a further period of imprisonment, beyond the 71 days was 'warranted by the gravity of the offending, in particular the level of planning involved'.

75 Mr Dann responded, just as the judge was about to sentence both offenders, that he did not wish to be heard in relation to what had just been said about the victim impact statement. He then posed the question 'if you want me to respond to anything that was put there' (seemingly responding to the submission as to 71 days not being sufficient), he was prepared to do so but otherwise, as a practical matter, and because he had another commitment that required his attendance, he would say nothing more.

76 This was all unfortunate. Mr Dann should have asked directly whether the judge required any further submission to be made regarding the newly asserted inadequacy of 71 days. He should, perhaps, have made clear that he wished to be heard specifically in relation to that matter. The judge, who as we have said, had already prepared his detailed sentencing remarks, and had been asked moments earlier by the prosecutor, for the very first time, to require the applicant to be returned to custody, should have indicated that the defence might wish to say something about that particular submission.

77 Of course, we cannot know whether anything said by Mr Dann at that point would have made the slightest difference to his Honour's thinking. On the other hand, the judge had permitted the applicant to remain on bail pending actual sentencing, and it was tolerably clear by this stage that a combination sentence of some sort would be imposed, the Crown having never, at any stage, submitted that such a sentence would not be open.

78 Reading between the lines, and this was confirmed by Mr Dann before this Court this morning, he was clearly taken by surprise when, contrary to all expectations, his client was required to return to custody.

79 Mr Dann could have submitted that a more heavily punishment based CCO would have been more appropriate than returning someone who has been released from custody to serve what might be regarded as a relatively short, and somewhat pointless, additional period of some months' imprisonment. Mr Dann never got to put that submission. In that broad sense, the applicant was denied procedural fairness.

80 Ground 2 is made good. The sentencing discretion miscarried, and the applicant should therefore be resentenced by this Court.

81 There is no substance to this ground. It is not suggested that the sentence imposed was manifestly excessive. Although the ground is couched in terms of specific error, it is, in substance, a ground of more general character.

82 In our opinion, leave to appeal should be granted. The sentence imposed below should be set aside. In lieu thereof, the applicant should be sentenced to a term of 6 months' imprisonment.

83 It is by no means clear to us why the applicant should be required to serve a CCO of any duration, particularly one which has no specifically punitive aspect. The applicant is, in our view, not in need of any close level of supervision, and specific deterrence is scarcely relevant to his situation.

84 The order of the Court, therefore, will be that the sentence imposed on 16 August 2019 is set aside. The applicant is sentenced to a term of 6 months' imprisonment.

85 The period of pre-sentence detention is declared as 189 days (not including today). The net effect is that the applicant should be released forthwith.

86 We declare, pursuant to s 6AAA that but for the applicant's plea of guilty, he would have been sentenced to a term of 9 months' imprisonment.

[1] Crimes Act 1958, ss 320 and 321 ('Crimes Act').

[2] DPP v Al-Janabe [2019] VCC 1313 (emphasis added) ('Reasons').

[4] Transcript of Proceedings, DPP v Al-Janabe (County Court of Victoria, 18-02387, Judge McInerney, 16 August 2019), 143.18-28 (M Cookson) ('Transcript - 16 August 2019'). It ought to be noted that the transcript of the plea concluded at 147. It seems that the sentence followed immediately thereafter.

[5] Transcript - 16 August 2019, 147.1-19 (emphasis added).

[6] Transcript of Proceedings, DPP v Al-Janabe (County Court of Victoria, 18-02387, Judge McInerney, 23 May 2019), 23.26-31 ('Transcript - 23 May 2019').

[8] No further agreement having been reached that this plan should be implemented, it being purely in the realm of conjecture as a possibility.

[9] R v De Simoni (1981) 147 CLR 386, 389-92 ('De Simoni'); R v Newman [1997] 1 VR 146, 150-2; Pun v The Queen [2017] VSCA 219, [1]-[22], [85]-[86].

[10] Reasons, [120] (emphasis added).

[11] Quoted above at [24] of our reasons.

[13] (1981) 147 CLR 386.

[14] [2010] VSCA 334; (2010) 30 VR 632.

[16] Transcript - 23 May 2019, 49.12-15.

[18] Which, as previously indicated, carries a maximum penalty of 5 years' imprisonment. See Crimes Act, ss 320, 321C(1)(d).

[19] Crimes Act, ss 18, 321C(1)(d).

[20] Ibid ss 16, 321C(1)(d).

[21] Ibid ss 63A, 321C(1)(d).