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Atem v The Queen

Atem v The Queen

Case [2020] VSCA 35 2 March 2020

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0169

DIEU MAWUT ATEM	Applicant
v
THE QUEEN	Respondent

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JUDGES:	TATE, McLEISH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 February 2020
DATE OF JUDGMENT:	2 March 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 35
JUDGMENT APPEALED FROM:	[2019] VCC 1177 (Judge Brimer)

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CRIMINAL LAW – Sentence – Causing serious injury recklessly – Conduct endangering life – Causing injury recklessly – Young offender – Plea of guilty – Aggregate sentence – Sentenced to a total effective sentence of 5 years’ imprisonment – Non-parole period of 3 years – Manifest excess – Whether offender’s youth and immaturity makes rehabilitation a more important sentencing consideration than general deterrence – Seriousness of offending – Offences committed while subject to Youth Supervision Order – Prior violent offending – Offender’s prospects of rehabilitation guarded – Whether sufficient weight given to youth in setting non-parole period – Director of Public Prosecutions v Neethling (2009) 22 VR 466, Azzopardi v The Queen (2011) 35 VR 43 and Harrison v The Queen (2015) 49 VR 619 applied – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Smallwood with Ms C Blakeney	Greg Thomas, Barrister & Solicitor
For the Respondent	Mr G Hughan	Ms A Hogan, Solicitor for Public Prosecutions

TATE JA
McLEISH JA
WEINBERG JA:

Introduction and summary

The applicant, Dieu Mawut Atem (‘Atem’) applies for leave to appeal against sentence.[1] The sole proposed ground of appeal is manifest excess.
[1]DPP v Atem [2019] VCC 1177 (‘Reasons’).

Atem was convicted, after pleading guilty, of one charge of causing serious injury recklessly, one charge of conduct endangering life and three charges of causing injury recklessly. All these charges arose from an incident that took place in and around the Gasometer Hotel in Collingwood in the early hours of 2 September 2018 (‘the Gasometer Hotel incident’) and principally relate to Atem’s erratic and dangerous use of a car in a manner that caused injuries to pedestrian onlookers. He also pleaded guilty to the related summary offence of unlicensed driving.[2]
[2]This was transferred to the County Court under s 145 of the Criminal Procedure Act 2009.

He was sentenced in the County Court on 6 August 2019 to an aggregate sentence of five years’ imprisonment, with a non-parole period of three years.

The details of his sentence are as follows:

Charge Offence Maximum Sentence Cumulation

1 Causing serious injury recklessly
[Crimes Act 1958 s 17] 15 years 5 years (aggregate) Base

2 Conduct endangering life [Crimes Act 1958 s 22] 10 years Refer to charge 1 Refer to charge 1

3 Causing injury recklessly [Crimes Act 1958 s 18] 5 years Refer to charge 1 Refer to charge 1

4 Causing injury recklessly [Crimes Act 1958 s 18] 5 years Refer to charge 1 Refer to charge 1

5 Causing injury recklessly [Crimes Act 1958 s 18] 5 years 3 months Nil

Related Summary Offence

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 Atem v The Queen

Details

AGLC: Atem v The Queen [2020] VSCA 35
Case: [2020] VSCA 35
Decision Date: 2 March 2020

CaseChat Overview and Summary

Atem was convicted of multiple charges including causing serious injury recklessly and conduct endangering life. The matter was heard in the Victorian Court of Appeal. The appellant appealed against his sentence, arguing that the trial judge did not sufficiently take into account his youth and immaturity, which made rehabilitation a more pertinent consideration than general deterrence. Additionally, he contended that the non-parole period set by the trial judge was manifestly excessive.

The court considered the appellant's arguments in light of relevant case law, specifically Director of Public Prosecutions v Neethling, Azzopardi v The Queen, and Harrison v The Queen. The court examined the principles of sentencing young offenders, emphasising the importance of rehabilitating young individuals while also considering the gravity of the offence and the need for general deterrence. The court also noted the appellant's prospects of rehabilitation were guarded due to his prior violent offending and the fact that the offences were committed while he was subject to a Youth Supervision Order.

After thoroughly reviewing the evidence and the principles of sentencing, the court found that the trial judge had appropriately balanced the considerations of rehabilitation and deterrence. The court held that the sentence imposed, which included a total effective sentence of five years' imprisonment with a non-parole period of three years, was not manifestly excessive. The court emphasised that the trial judge had given proper weight to the appellant's youth and immaturity but had also considered the seriousness of the offending and the need for general deterrence.

The appeal was dismissed, and the appellant's sentence was upheld. The court denied leave to appeal to the High Court.

Orders