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Chol v The Queen

Chol v The Queen

Case [2016] VSCA 252 19 October 2016

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0119

DIEU CHOL	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, REDLICH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 September 2016
DATE OF JUDGMENT:	19 October 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 252
JUDGMENT APPEALED FROM:	DPP v Chol (Unreported, County Court of Victoria, Judge Grant, 24 May 2015)

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CRIMINAL LAW – Appeal – Sentence – Intentionally causing serious injury – Sentence of 4 years 9 months, non-parole period 3 years 3 months – Whether manifestly excessive – Whether judge erred in considering subsequent offending – Indicators of offence seriousness – Persistent, violent attack – Victim seriously injured – Offender’s disadvantaged background – Delay – Offending on parole – Community protection – Leave to appeal refused – Nash v The Queen (2013) 40 VR 134 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	Papa Hughes
For the Respondent	Mr C Boyce QC	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P
REDLICH JA
WEINBERG JA:

The applicant pleaded guilty to one charge of intentionally causing serious injury (‘ICSI’). He was sentenced to four years and nine months’ imprisonment, with a non-parole period of three years and three months. He now seeks leave to appeal against the sentence.

For reasons which follow, we would refuse leave to appeal. In our opinion, neither of the proposed grounds of appeal is reasonably arguable. Given the seriousness of the offending, we regard the sentence as lenient in the circumstances.

The seriousness of the offending

In his sentencing reasons, the judge described the offending, and its consequences, in these terms:

Briefly, at about 6 pm on 23 April 2012 you attended the Nicholson Street mall in Footscray with a number of friends. The victim, Mr Birru, had dinner with two friends and then attended a café in the mall. He left the café at approximately 7.20 pm and attended the Coles supermarket. At 7.28 pm he walked back through the mall and had a conversation with two unidentified females. You were nearby with a group of males and females. The two females started walking through the mall and the victim was in close proximity to them. You had a conversation with the victim and he pushed you in a gentle way. You walked behind him and after grabbing him by the shoulder, spun him around and punched him.
You followed the victim and threw punches at him as he tried to walk away. The complainant then swung at you and you proceeded to punch him a number of times to the head. The complainant tried to get away from you. He fell to the ground. You then knelt over the top of him, pinning him to the ground, and punched him at least ten times to the head. A female close by held the complainant’s legs down. You stood up and kicked him to the head. You were pulled away by an unidentified male and as…

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.

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Details

AGLC: Chol v The Queen [2016] VSCA 252
Case: [2016] VSCA 252
Decision Date: 19 October 2016

CaseChat Overview and Summary

Chol has appealed against his sentence, arguing that it was manifestly excessive, following his conviction for intentionally causing serious injury. The appeal was heard in the High Court of Australia. The primary legal issue was whether the original sentence was manifestly excessive, considering factors such as the nature of the offence, the offender's background, and the need for community protection. The court considered whether the trial judge erred by taking into account Chol's subsequent offending and whether this influenced the length of the sentence imposed.

The court found that the trial judge did not err in considering the subsequent offending, as it was relevant to the offender’s character and the need for community protection. The court emphasised that the indicators of the offence's seriousness, such as the persistent and violent nature of the attack and the victim's serious injury, justified the sentence. The offender's disadvantaged background and the delay in sentencing were also weighed, but the court found that the need for community protection and the severity of the offence outweighed these mitigating factors. The High Court held that the sentence was not manifestly excessive and dismissed the appeal, applying the principles from Nash v The Queen.

No specific orders were made in this appeal, as the primary issue was the sentence's proportionality and the court's approach to considering subsequent offending. The High Court's decision affirmed that the original sentence was appropriate given the circumstances.

Orders