Legal Research
Cases
Bidong v The Queen

Bidong v The Queen

Case [2022] VSCA 33 16 March 2022

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0147

DUR BIDONG	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	MAXWELL P and KENNEDY JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 February 2022
DATE OF JUDGMENT:	16 March 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 33
JUDGMENT APPEALED FROM:	[2021] VCC 511 (Judge Georgiou)

---

CRIMINAL LAW – Appeal – Sentence – Application for extension of time – Applicant pleaded guilty to robbery and failure to answer bail – Sentenced to 2 years and 10 months’ imprisonment with non-parole period of 24 months – Whether sentence manifestly excessive – Whether judge failed to sufficiently moderate sentence having regard to principle of totality – Whether non-parole period ‘invited scrutiny’ – Very poor prospects of success – Inadequate explanation for delay – Madafferi v R [2017] VSCA 302 and Sayer v R [2018] VSCA 177 applied – R v VZ (1998) 7 VR 693 distinguished – Extension of time refused.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr CK Wareham	Gallant Law
For the Respondent	Mr JCJ McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
KENNEDY JA:

On 30 January 2018, at approximately 7:30 pm, the applicant (then aged 24), together with a number of other unknown persons, committed a robbery against a member of the public who was walking towards a train station, on his way home from work. Although the applicant did not play a direct role in the physical assault that ensued, force was used, and the robbery and assault has particularly affected the victim’s psychological well-being.

The applicant pleaded guilty to one charge of robbery, and one charge of failing to answer bail in relation to this incident. On 30 April 2021, following reasons for sentence,[1] he was sentenced as set out in the table below:
[1][2021] VCC 511 (‘Sentencing Remarks’).

Charge Offence Maximum Sentence Cumulation

1 Robbery[2] 15 years 33 months Base

Summary charge 5 Fail to answer bail[3] 2 years 3 months 1 month

Total Effective Sentence 2 years and 10 months’ imprisonment

Non-parole period 24 months

Pre-sentence detention 358 days

Section 6AAA Statement 3 years and 4 months with a non-parole period of 30 months
[2]Crimes Act 1958 s 75.
[3]Bail Act 1977 s 30(1).

Charge	Offence	Maximum	Sentence	Cumulation
1	Robbery[2]	15 years	33 months	Base
Summary charge 5	Fail to answer bail[3]	2 years	3 months	1 month
Total Effective Sentence	2 years and 10 months’ imprisonment
Non-parole period	24 months
Pre-sentence detention	358 days
Section 6AAA Statement	3 years and 4 months with a non-parole period of 30 months

The applicant failed to file an application for leave to appeal within the 28 days provided by s 279 of the Criminal Procedure Act 2009. However, on 15 October 2021 (some 20 weeks after the prescribed time elapsed) he filed an application for extension of time to file such application, and also provided the Court with a proposed application for leave to appeal.

The proposed application for leave to appeal contained two proposed grounds. However, at the hearing of his application, he was given leave to abandon proposed ground 2,[4] with the result that the applicant relies solely upon the following proposed ground:
[4]Proposed ground 2 was that the Learned Sentencing Judge erred in taking aspects of the victim impact statement of the victim…

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 Bidong v The Queen

Details

AGLC: Bidong v The Queen [2022] VSCA 33
Case: [2022] VSCA 33
Decision Date: 16 March 2022

CaseChat Overview and Summary

Bidong, the applicant, appealed against his sentence, contending that it was manifestly excessive and that the judge had failed to adequately moderate the sentence in line with the principle of totality. Additionally, he argued that the non-parole period of 24 months invited scrutiny. The appeal was heard by the Victorian Court of Appeal. The legal issues before the court were whether the sentence was manifestly excessive, whether the judge had failed to sufficiently moderate the sentence considering the principle of totality, and whether the non-parole period warranted scrutiny.

The court addressed these issues by first examining whether the sentence was manifestly excessive. It held that there were very poor prospects of success for the applicant’s appeal against sentence, a significant factor in determining whether an extension of time to appeal should be granted. The court then considered whether the judge had failed to sufficiently moderate the sentence, noting that the principle of totality was appropriately applied. The court also assessed the non-parole period, finding that it did not invite scrutiny. The applicant had not provided an adequate explanation for the delay in lodging the appeal, further weighing against the grant of an extension of time. The court referred to previous cases such as Madafferi v R [2017] VSCA 302 and Sayer v R [2018] VSCA 177 in reaching its decision, while distinguishing the case from R v VZ (1998) 7 VR 693.

In conclusion, the court found that the sentence was not manifestly excessive, that the principle of totality had been properly applied, and that the non-parole period did not warrant scrutiny. Given the poor prospects of success of the appeal and the inadequate explanation for the delay, the court refused the applicant's application for an extension of time to appeal against his sentence.

Orders