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Bieljok v The Queen

Bieljok v The Queen

Case [2018] VSCA 99 20 April 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0224

KUACHJAN BIELJOK	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG, BEACH and HARGRAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 March 2018
DATE OF JUDGMENT:	20 April 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 99	First Revision: 20 April 2018: para [72]
JUDGMENT APPEALED FROM:	DPP v Bieljok (Unreported, County Court of Victoria, Judge Campton, 28 September 2017)

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CRIMINAL LAW – Appeal – Sentence – Pleas of guilty to two charges of attempted armed robbery and consequential breach of Community Correction Order (‘CCO’) – CCO cancelled and applicant re-sentenced for previous theft of motor vehicle pursuant to Sentencing Act 1991 s 83AS(1)(c) – Whether new sentence of six months’ imprisonment for theft of motor vehicle manifestly excessive – Whether total effective sentence of two years and nine months with non-parole period of 18 months manifestly excessive – Principle of totality – Youthful offender with disadvantaged background and mild intellectual disability – Application for leave to appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms G F Connelly	Victoria Legal Aid
For the Crown	Mr M D Phillips	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA
BEACH JA
HARGRAVE JA:

On 28 September 2017, the applicant, Kuachjan Bieljok, now aged 22, was sentenced in the County Court at Melbourne, on two separate indictments, to a total effective sentence of two years and nine months’ imprisonment with a non-parole period of 18 months. He now seeks leave to appeal against that sentence.

The first indictment related to a charge of theft of a motor vehicle, which took place on the night of 22 June 2013. The applicant was not charged with that offence until sometime after November 2015. On 1 July 2016, he was sentenced to 163 days’ imprisonment, to be followed by a 12 month Community Correction Order (‘CCO’), in respect of that matter. The custodial component of this sentence was effectively time served. The applicant was accordingly released from custody.

Within just a few weeks, on 30 July 2016, the applicant committed two offences of attempted armed robbery. These offences gave rise to the sentences that are, in part, the subject of this application. They also gave rise to a breach of the CCO, with which the applicant was subsequently charged. Plainly, he had barely commenced compliance with the terms of that order when he again offended.

On 28 September 2017, the applicant, having pleaded guilty, was sentenced as set out in the table below. The sentence for theft of the motor vehicle, was imposed pursuant to s 83AS of the Sentencing Act 1991, to which we shall later return in these reasons for judgment. It is sufficient for present purposes to note simply that that section provides that a judge who is dealing with a contravention of a CCO, can deal with the offender for the original offence with respect to which that order was made, ‘as if’ the Court had just found him guilty…

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 Bieljok v The Queen

Details

AGLC: Bieljok v The Queen [2018] VSCA 99
Case: [2018] VSCA 99
Decision Date: 20 April 2018

CaseChat Overview and Summary

The applicant, Bieljok, appealed against his sentence, which was imposed following his pleas of guilty to two charges of attempted armed robbery and a breach of a Community Correction Order. The Court of Appeal was tasked with determining whether the sentence was manifestly excessive. The sentence imposed was six months' imprisonment for the theft of a motor vehicle, which was re-sentenced under the Sentencing Act 1991. The original Community Correction Order was cancelled, and the applicant was sentenced to a total of two years and nine months imprisonment, with a non-parole period of 18 months. Bieljok argued that both the new sentence for the theft of the motor vehicle and the total effective sentence were manifestly excessive.

The court considered the principle of totality, taking into account the applicant's age, disadvantaged background, and mild intellectual disability. It was noted that the applicant had previously been subject to a Community Correction Order for a separate offence, which he breached by committing the current offences. The court also noted that the applicant had a history of offending behaviour and had not responded well to previous attempts at rehabilitation. The court found that the sentence imposed was not manifestly excessive, taking into account the principle of totality and the need to protect the community.

The court dismissed the application for leave to appeal, finding that the sentence imposed was not manifestly excessive. The court noted that the applicant had a history of offending behaviour and had not responded well to previous attempts at rehabilitation. The court found that the sentence imposed was appropriate, taking into account the principle of totality and the need to protect the community. The court also noted that the applicant had a disadvantaged background and a mild intellectual disability, but these factors did not outweigh the seriousness of the offences committed. The court found that the sentence imposed was not manifestly excessive and dismissed the application for leave to appeal.

Orders