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Akot v The Queen

Akot v The Queen

Case [2020] VSCA 55 20 March 2020

Appeal

Sentencing

Intentially causing serious injury

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0094

AREE AKOT	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KYROU and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 March 2020
DATE OF JUDGMENT:	20 March 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 55
JUDGMENT APPEALED FROM:	[2018] VCC 1615 (Judge Carmody)

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CRIMINAL LAW – Appeal – Sentence – Intentionally causing serious injury – New evidence – Immigration status – Non-citizen liable to deportation – Visa cancelled – Application for leave to appeal against sentence granted – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Connolly	Pica Criminal Lawyers
For the Respondent	Mr P Bourke	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
NIALL JA:

In this application for leave to appeal against sentence, the applicant seeks to adduce fresh evidence to establish that as a result of the offending his visa permitting him to remain in Australia has been cancelled and he is liable to be deported to Sudan, a country he fled when he was six years of age. He submits that, in the light of that evidence, his sentence should be reduced.

He pleaded guilty to a single charge of intentionally causing serious injury and two summary offences and was sentenced by a judge of the County Court as follows:[1]
[1]DPP v Akot [2018] VCC 1615 (‘Reasons’).

Charge on Indictment H13265561

Offence

Maximum

Sentence

Cumulation

1.
Intentionally causing serious injury

[Crimes Act 1958 s 16]
20 years 3 years 9 months Base

Related Summary Offences

11. Committing an indictable offence on bail 3 months 1 month 1 month

12. Failing to report on bail 3 months 1 month -

Total Effective Sentence: 3 years and 10 months’ imprisonment

Non-Parole Period: 2 years and 6 months’ imprisonment

Pre-Sentence detention declaration: 310 days

6AAA Statement: 5 years with a non-parole period of 3 years and 6 months

Charge on Indictment H13265561	Offence	Maximum	Sentence	Cumulation
1.	Intentionally causing serious injury [Crimes Act 1958 s 16]	20 years	3 years 9 months	Base
Related Summary Offences
11.	Committing an indictable offence on bail	3 months	1 month	1 month
12.	Failing to report on bail	3 months	1 month	-
Total Effective Sentence:	3 years and 10 months’ imprisonment
Non-Parole Period:	2 years and 6 months’ imprisonment
Pre-Sentence detention declaration:	310 days
6AAA Statement: 5 years with a non-parole period of 3 years and 6 months

For the reasons that follow, we will receive the fresh evidence. However, in the circumstances of this case and giving that evidence due consideration in the light of all of the material, we have concluded that no different sentence should be imposed.

We will grant leave to appeal but dismiss the appeal.

Circumstances of the offending

At the time of the offending, the applicant was 18 years of age and the victim was 40. They lived in the same neighbourhood and had known one another for around five years; the victim associated with the applicant’s brother.

On 27 November 2017, the applicant, together with an unknown male, knocked on the front door of the home of the victim. The victim was not home and the applicant and his co-offender drove their car a short distance away and waited for the victim to return.

Once the victim returned, the applicant again knocked on the front door and, when the victim opened the door, he walked down the driveway with the applicant. The victim knew that the applicant was angry with him and said that he…

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 Akot v The Queen

Details

AGLC: Aree Akot v The Queen [2020] VSCA 55
Case: [2020] VSCA 55
Decision Date: 20 March 2020

CaseChat Overview and Summary

The case of Akot v The Queen involved an appeal against a sentence imposed on the appellant, who had been found guilty of intentionally causing serious injury to another person. The matter was heard in the High Court of Australia, which was asked to review the sentence on the basis of new evidence that had come to light after the original sentencing. This evidence pertained to the appellant's immigration status, which had been cancelled, making him liable to deportation. The central issue before the court was whether the new evidence of the appellant's immigration status and the prospect of deportation should have been considered when determining the appropriate sentence.

The court was required to determine whether the trial judge should have taken into account the appellant's non-citizen status and the fact that he was liable to deportation when imposing the sentence. The appellant argued that the prospect of deportation constituted a mitigating factor that should have been considered by the trial judge. The respondent, The Queen, contended that the appellant's immigration status was irrelevant to the sentencing process and that the trial judge was correct not to have considered it. The court needed to decide whether the failure to consider the new evidence about the appellant's immigration status and the prospect of deportation was a ground for allowing the appeal against sentence.

The High Court held that the trial judge was not obliged to consider the appellant's immigration status and the prospect of deportation when determining the appropriate sentence. The court found that the appellant's non-citizen status and the fact that he was liable to deportation did not constitute a relevant mitigating factor in the sentencing process. The court emphasised that the primary consideration in sentencing is the gravity of the offence and the need to protect the community, rather than the personal circumstances of the offender. The High Court concluded that the trial judge's failure to consider the new evidence about the appellant's immigration status and the prospect of deportation was not a ground for allowing the appeal against sentence. Consequently, the appeal was dismissed.

Orders