JUDGES:	McLEISH and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 October 2018
DATE OF JUDGMENT:	14 November 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 296
JUDGMENT APPEALED FROM:	DPP v Ofamooni; DPP v Ah-Kau (Unreported, County Court of Victoria, Judge Lyon, 19 December 2017)

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CRIMINAL LAW – Application for leave to appeal – Appeal – Sentence – Aggravated burglary – Theft – Kidnapping – Intentionally causing injury – Prohibited possession of firearm – Whether sentence manifestly excessive – Application for leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Theft – Kidnapping – Intentionally causing injury – Armed robbery – Whether orders for cumulation offend totality principle – Whether sentencing judge erred in finding insufficient disparity between total effective sentence imposed on each co-offender – Whether kidnapping sentence and total effective sentence manifestly excessive – Appeal on totality and manifest excess dismissed – Appeal on parity allowed – Appellant resentenced – New total effective sentence of 10 years’ imprisonment – New non-parole period of 6 years and 9 months – R v Verdins (2007) 16 VR 269.

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APPEARANCES:

Counsel

Solicitors

For the Applicant

For the Appellant

Mr J O’Connor

Mr P J Smallwood

Haines & Polites

Papa Hughes Lawyers

For the Crown

Ms E H Ruddle

Mr J Cain, Solicitor for Public Prosecutions

McLEISH JA
T FORREST JA:

On 1 December 2017, Kelepi Ofamooni and Joseph Ah-Kau pleaded guilty in the County Court to various serious criminal charges. On 19 December 2017, they were sentenced as follows:

Kelepi OFAMOONI

Charge on Indictment G11791199 Offence Maximum Sentence Cumulation

1. Aggravated Burglary contrary to s 77(1)(a) of the Crimes Act 1958 Level 2 imprisonment (25 years) 7 years’ imprisonment 3 years

2. Theft contrary to s 74(1) of the Crimes Act 1958 Level 5 imprisonment (10 years) 18 months’ imprisonment 3 months

3. Kidnapping contrary to s 63A of the Crimes Act 1958 Level 2 imprisonment (25 years) 7 years’ imprisonment Base sentence

4. Armed Robbery contrary to s 75A of the Crimes Act 1958 Level 2 imprisonment (25 years) 4 years’ imprisonment 15 months

5.
Intentionally Causing Injury contrary to s 18 of the Crimes Act 1958 Level 5 imprisonment (10 years) 3 years’ imprisonment 6 months

Total Effective Sentence (‘TES’): 12 years’ imprisonment

Non-Parole Period: 7 years 6 months

Pre-sentence Detention Declared: 536 days

6AAA Statement: 14 years 6 months with a non-parole period of 11 years

Other orders:

Licence suspension on charge 4 for a period of 9 months commencing 19 December 2017

Forfeiture Order

Joseph AH-KAU

Charge on Indictment G11791235 Offence Maximum Sentence Cumulation

1. Aggravated Burglary contrary to s 77(1)(a) of the Crimes Act 1958 Level 2 imprisonment (25 years) 7 years’ imprisonment 3 years

2. Theft contrary to s 74(1) of the Crimes Act 1958

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 Ah-Kau v The Queen

Details

AGLC: Ah-Kau v The Queen [2018] VSCA 296
Case: [2018] VSCA 296
Decision Date: 14 November 2018

CaseChat Overview and Summary

In the matter of Ah-Kau v The Queen, the appellant, Mr. Ah-Kau, sought leave to appeal against his sentence following his conviction for multiple offences including aggravated burglary, theft, kidnapping, and intentionally causing injury, as well as prohibited possession of a firearm. The case was heard in the Court of Appeal. The primary legal issues before the court involved whether the sentence imposed by the sentencing judge was manifestly excessive and whether the orders for cumulation offended the totality principle. Additionally, the court had to determine if the sentencing judge erred in finding an insufficient disparity between the total effective sentence imposed on each co-offender, and whether the kidnapping sentence and the total effective sentence were manifestly excessive.

The Court of Appeal assessed the arguments presented, focusing on the principles outlined in R v Verdins. The court found that while the sentencing judge had considered the totality principle, there was an error in the disparity analysis between the appellant's sentence and that of his co-offenders. This constituted a material error in the sentencing process. However, the court determined that the sentence was not manifestly excessive. The court also concluded that the orders for cumulation did not violate the totality principle, and that the sentencing judge's assessment of the disparity between sentences was not so flawed as to render the sentence manifestly excessive.

Ultimately, the Court of Appeal dismissed the appeal concerning the totality and manifest excess, but allowed the appeal on the grounds of parity. The appellant was resentenced, resulting in a new total effective sentence of 10 years' imprisonment, with a new non-parole period of 6 years and 9 months. The court held that this sentence appropriately reflected the gravity of the crimes committed while adhering to the principles of sentencing proportionality and fairness.

Orders