Bulaale Muuse v The Queen - [2017] VSCA 244

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 111

BULAALE MUUSE	Applicant
v
THE QUEEN	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	8 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 244
JUDGMENT APPEALED FROM:	DPP vMuuse (Unreported, County Court of Victoria, Judge McInerney, 4 May 2017)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Attempted armed robbery, attempted robbery and committing indictable offence while on bail – Total effective sentence of 3 years and 6 months’ imprisonment with non-parole period of 2 years – Manifest excess – Whether individual sentences, total effective sentence or non-parole period were manifestly excessive – Manifest excess not reasonably arguable – Parity – Whether sentence on charge of attempted robbery infringed parity principle – Parity complaint not reasonably arguable – No reasonable prospect that Court of Appeal would reduce total effective sentence – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance	Patrick W Dwyer
For the Crown	No appearance	Mr J Cain, Solicitor for Public Prosecutions

BEACH JA:

On 6 April 2017, the applicant pleaded guilty in the County Court to one charge of attempted armed robbery, one charge of attempted robbery and one charge of committing an indictable offence while on bail. Following a plea hearing, on 4 May 2017, the applicant was sentenced as follows:

Charge

Offence

Maximum

Sentence

Cumulation

1.
Attempted armed robbery
ss 75A & 321M Crimes Act 1958

20 years

ss 75A & 321P
Crimes Act 1958
3 years 6 months’ imprisonment Base

2.
Attempted robbery ss 75(1) & 321M

Crimes Act 1958

10 years

ss 75(2) & 321P
Crimes Act 1958
10 months’ imprisonment Concurrent

Summary offence
Commit indictable offence on bail

s 30B Bail Act 1977
30 penalty units or 3 months’ imprisonment s 30B Bail Act 1977 1 month’s imprisonment Concurrent

Total Effective Sentence: 3 years 6 months’ imprisonment

Non-Parole Period: 2 years

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 223 days

6AAA Statement: 5 years 6 months’ imprisonment, with a non-parole period of 3 years 6 months’ imprisonment.

Other relevant orders: disposal order; forensic sample order

The applicant seeks leave to appeal against his sentence on the following grounds:

1. (a) the individual sentences imposed are manifestly excessive;
(b) the total effective sentence of three years and six months’ imprisonment is manifestly excessive; and
(c)the non-parole period of two years is manifestly excessive.

2.There is an unjustifiable disparity between the sentence imposed upon the applicant for the count of attempted robbery and the sentence imposed on his co-offender in the Melbourne Magistrates’ Court.

Circumstances of the offending

At 8:50 am on 23 September 2016, the complainant (a 20 year old student) was walking along A’Beckett Street, Melbourne towards RMIT University. The complainant was playing on her phone. When she looked up, the applicant was standing in front of her and would not let her pass. The…

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 Bulaale Muuse v The Queen

Details

AGLC: Bulaale Muuse v The Queen [2017] VSCA 244
Case: [2017] VSCA 244
Decision Date: 8 September 2017

CaseChat Overview and Summary

Bulaale Muuse was convicted of attempted armed robbery, attempted robbery, and committing an indictable offence while on bail. He was sentenced to a total effective sentence of 3 years and 6 months imprisonment, with a non-parole period of 2 years. Muuse applied for leave to appeal against his sentence, arguing that it was manifestly excessive, breached the principle of parity, and that there was a reasonable prospect that the Court of Appeal would reduce the total effective sentence. The High Court was tasked with determining whether the sentence imposed was manifestly excessive, whether it breached the principle of parity, and whether there was a reasonable prospect that the Court of Appeal would reduce the sentence.

The High Court held that the sentence was not manifestly excessive, as the trial judge had considered all relevant factors and the sentence was proportionate to the seriousness of the offences. The Court also found that the parity principle was not infringed, as the sentence was consistent with sentences imposed for similar offences. The Court concluded that there was no reasonable prospect that the Court of Appeal would reduce the total effective sentence, as the sentence was well within the range of sentences that could be imposed for the offences committed.

In light of the above, the Court refused Muuse's application for leave to appeal. The Court held that the sentence imposed was not manifestly excessive, did not breach the principle of parity, and that there was no reasonable prospect that the Court of Appeal would reduce the total effective sentence. The Court's decision upholds the importance of proportionality and consistency in sentencing, while also recognising the discretion of the trial judge in determining an appropriate sentence for the offences committed.

Orders