Dalais v The King - [2023] VSCA 195

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0001

JACQUES DALAIS	Applicant
v
THE KING	Respondent

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JUDGES:	MACAULAY JA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	1 August 2023
DATE OF JUDGMENT:	23 August 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 195
JUDGMENT APPEALED FROM:	[2022] VCC 2175 (Judge Kelly)

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CRIMINAL LAW – Appeal – Sentence – Home invasion – Where applicant pleaded guilty on complicity basis – Whether judge erred in finding applicant entered home deliberately – Whether judge erred in finding actual entrance aggravated offence – Leave to appeal refused.

Crimes Act 1958 ss 77A, 323(1)(a), 324.

Elsayed v The Queen [2019] VSCA 113 applied.

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Counsel
Applicant:		Mr PJ Smallwood
Respondent:		Mr CB Boyce KC
Solicitors
Applicant:	Garde Wilson Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MACAULAY JA
J FORREST AJA:

Introduction

On 2 December 2022, the applicant, Jacques Dalais, now aged 47 years, pleaded guilty in the County Court to one charge of home invasion.[1]
[1]Contrary to s 77A of the Crimes Act 1958.
The applicant was charged on the basis that he was an accomplice of two other males who had violently and unlawfully entered a house in Carrum Downs. Following his plea, the applicant was sentenced on 7 December 2022 by his Honour Judge Kelly on one count of home invasion (maximum 25 years) to two years and six months imprisonment with a non-parole period of one year and six months.
On 3 January 2023, the applicant filed an application for leave to appeal against the sentence on the following ground:[2]
The sentencing judge erred by finding that the applicant deliberately entered the victims’ home with the intention to affect [sic] a home invasion by assisting his co-offenders in their assaults upon the occupants.
[2]For convenience, from here on in, the proposed ground will be referred to as a ‘ground’.
On the hearing, the application focused on the judge’s analysis of the applicant’s actions and intentions at and around the time the three entered the house. We have determined that no sentencing error has occurred and the application for leave to appeal should be refused. Our reasons follow.
Circumstances of the offending
In the early hours of 18 October 2020, the applicant, together with Patrick Iaulualo and Daniel Heaven, alighted from an Uber at the home of the Betteridge family (Paul, his wife Julie and son Jake) in Carrum Downs. Each wore a hood and a mask. Iaulualo was armed with a small high power butane gas torch.
The actions of the three in endeavouring to enter the house are depicted on CCTV footage taken from a camera located on the front porch of the house.
Iaulualo, Heaven and the applicant approached the front door which Iaulualo tried to open forcefully. The family inside were asleep and were awoken by the commotion of the three miscreants. Paul armed himself with a baseball bat and went to the front door. Heaven pulled at the front screen…

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 Dalais v The King

Details

AGLC: Dalais v The King [2023] VSCA 195
Case: [2023] VSCA 195
Decision Date: 23 August 2023

CaseChat Overview and Summary

The applicant in this case, Dalais, appealed against the sentence handed down by the trial judge in the County Court of Victoria. The case involved a home invasion where the applicant pleaded guilty on the basis of complicity. The appeal centred around two key issues: whether the judge was correct in determining that the applicant entered the home deliberately, and whether the actual entrance of the home constituted an aggravating factor of the offence. The applicant contended that the judge erred in both findings, leading to an excessive sentence.

The legal issues that the court needed to address were primarily concerned with the interpretation and application of the Crimes Act 1958. The court needed to determine whether the trial judge correctly interpreted the relevant sections of the Act, specifically sections 77A, 323(1)(a), and 324. Additionally, the court had to consider whether the decision in Elsayed v The Queen, which was applied in this case, was correctly applied to the facts of the matter at hand.

The court found that the trial judge's findings were consistent with the evidence presented and the applicable law. The court concluded that the judge correctly determined that the applicant entered the home deliberately and that this factor aggravated the offence. The court noted that the applicant's actions, including forcing entry and committing an indictable offence, warranted a significant penalty. The appeal was dismissed, and the applicant was denied leave to appeal. The court upheld the sentence imposed by the trial judge.

Orders