Ale v The King

Case [2025] VSCA 92


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0208
ROBERT ALE Applicant
v
THE KING Respondent

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JUDGES: NIALL CJ and KENNY JA
WHERE HELD: Melbourne
DATE OF HEARING: 3 February 2025
DATE OF JUDGMENT: 1 May 2025
MEDIUM NEUTRAL CITATION: [2025] VSCA 92
JUDGMENT APPEALED FROM: [2019] VCC 432 (Judge Higham)

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CRIMINAL LAW – Appeal – Sentence – Application for extension of time to seek leave to appeal against sentence – Conspiracy to recklessly cause injury – Judge misapprehended maximum penalty for offence – Whether sentencing discretion miscarried – Error established – Criminal Procedure Act 2009, s 280(1)(b) – Application for extension of time granted – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Trafficking drug of dependence (3 charges), conspiracy to commit arson (2 charges), conspiracy to recklessly cause injury (2 charges), possess unregistered general category handgun (1 charge) – Total effective sentence of 18 years – Non-parole period of 13 years and 9 months – Whether sentence manifestly excessive – Criminal Procedure Act 2009, s 280(1)(b) – No reasonable prospect Court would impose a shorter period of cumulation – No reasonable prospect of reduction in total effective sentence or non-parole period – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Whether judge failed to find moral culpability reduced by reason of disadvantaged background – Bugmy v The Queen (2013) 249 CLR 571 – Specific deterrence – Community protection – Judge had regard to applicant’s moral culpability – Open to conclude that moral culpability not reduced – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Fresh evidence – Delay in medical treatment in custody – Whether sentencing discretion should be re-opened – R v Nguyen [2006] VSCA 184 – Judge had regard to applicant’s medical needs – Evidence does not shed significant new light on facts – Evidence is inadmissible – Leave to appeal refused.

Crimes Act 1958, s 18; Sentencing Act 1991, s 5(2)(a); Criminal Procedure Act 2009, ss 280(1), 281(1).

Bugmy v The Queen (2013) 249 CLR 571; DPP v Herrmann (2021) 290 A Crim R 110; Gillespie v The Queen [2018] VSCA 151; Leslie v The King [2025] VSCA 13; Madafferi v The Queen [2017] VSCA 302; R v AB [No 2] (2008) 18 VR 391; R v Beary (2004) 11 VR 151; R v Nguyen [2006] VSCA 184; R v RJE [1999] VSCA 79; R v Vachalec [1981] 1 NSWLR 351; Romero v R (2011) 32 VR 486; Sabatucci v The Queen [2021] VSCA 340; Stewart v The Queen [2015] VSCA 368, considered.

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Counsel

Applicants: Mr D Dann KC with Mr C Wareham
Respondent/s: Ms D Piekusis KC

Solicitors

Applicants: Theo Magazis & Associates
Respondent/s: Ms A Hogan, Solicitor for Public Prosecutions

NIALL CJ
KENNY JA:

  1. On 23 August 2018, the applicant was convicted of 18 offences following a plea of guilty.

  2. On 8 March 2019 he…

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Ale v The King [2025] VSCA 92
Case
[2025] VSCA 92
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CaseChat Overview and Summary

In the case of Ale v The King, the applicant, Ale, appealed against his sentence, which comprised a total effective sentence of 18 years and a non-parole period of 13 years and 9 months. The applicant was convicted of multiple charges, including drug trafficking, conspiracy to commit arson, conspiracy to recklessly cause injury, and possessing an unregistered handgun. Ale sought an extension of time to seek leave to appeal against his sentence on various grounds, including an error by the trial judge in misapprehending the maximum penalty for one of the offences, and the sentence being manifestly excessive. Ale also contended that the trial judge failed to find his moral culpability reduced by reason of his disadvantaged background, and argued that fresh evidence, in the form of a delay in receiving medical treatment while in custody, should lead to a reopening of the sentencing discretion.

The court considered whether the trial judge misapprehended the maximum penalty for the offence of conspiracy to recklessly cause injury, whether the sentence was manifestly excessive, whether the trial judge failed to take into account Ale's disadvantaged background, and whether the fresh evidence warranted a reopening of the sentencing discretion. The court found that the trial judge had misapprehended the maximum penalty for one of the offences, but held that this did not establish a miscarriage of sentencing discretion. Regarding the sentence's excessiveness, the court concluded that there was no reasonable prospect that the court would impose a shorter period of cumulation or reduce the total effective sentence or non-parole period. The court further determined that the trial judge had considered Ale's moral culpability and was open to concluding that it was not reduced, and that the fresh evidence did not shed significant new light on the facts and was inadmissible.

The application for an extension of time to seek leave to appeal against sentence was granted, but the leave to appeal was refused. The court found that the error in misapprehending the maximum penalty did not establish a miscarriage of sentencing discretion, and there was no reasonable prospect of a reduction in the sentence. The court held that the trial judge had appropriately considered Ale's moral culpability and disadvantaged background, and that the fresh evidence did not warrant a reopening of the sentencing discretion. Consequently, the appeal against sentence was dismissed.

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