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Deng-Mabior v The Queen

Deng-Mabior v The Queen

Case [2015] VSCA 179 17 July 2015

Appeal

Sentencing

Community correction order (CCO)

Recklessly causing serious injury

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0278

EMMANUAL DENG-MABIOR	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, WEINBERG and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 April 2015
DATE OF JUDGMENT:	17 July 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 179
JUDGMENT APPEALED FROM:	DPP v Deng-Mabior (Unreported, County Court of Victoria, Judge Quin, 24 November 2014)

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CRIMINAL LAW – Appeal – Sentence – Community correction order (CCO) – Combination sentence – Recklessly causing serious injury – Sentenced to 2 years’ imprisonment with 2 year CCO – Judge failed to fix non-parole period – Statutory requirement to do so – Crown concession of error – Resentenced to 18 months’ imprisonment and 2 year CCO with additional conditions – Sentencing Act 1991 s 11, pt 3A.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms J L Clark	Matthew White & Associates
For the Crown	Ms S Borg	Ms V Anscombe, Acting Solicitor for Public Prosecutions

MAXWELL P
WEINBERG JA
KYROU JA:

The applicant, now aged 34, pleaded guilty to one charge of having recklessly caused serious injury to his former partner (‘R’). He was sentenced to a term of 2 years’ imprisonment, to be followed by a 2 year community correction order (‘CCO’) with treatment and rehabilitation conditions.

He now seeks leave to appeal against sentence. He relies upon the following grounds:

1.The sentencing judge erred in sentencing on the basis that the injury and the circumstances in which it occurred are very serious.
2.The total sentence imposed is manifestly excessive.
3.Failure to fix a non-parole period.

As will appear, the first two grounds were abandoned at the outset of the hearing. We would grant leave to appeal on the remaining ground, allow the appeal and resentence the applicant to a term of 18 months’ imprisonment, to be followed by a 2-year CCO with additional conditions.

This appeal highlights a legislative anomaly in relation to ‘combination sentences’ under the CCO regime, that is, sentences of the kind imposed in the present case which combine a term of imprisonment with a CCO. As amended in 2014, s 44 of the Sentencing Act 1991 (‘the Act’) permits the sentencing court to combine a CCO with a prison term of up to 2 years.

If the term of imprisonment is less than 2 years,[1] the court has a discretion not to fix a non-parole period and instead to order that the CCO commence immediately upon completion of the custodial period. That was the intention of the sentencing judge in the present case and it was, with respect, an entirely appropriate course in the circumstances of the case.
[1]And not less than 1 year: the Act s 11(2).

Anomalously, however, the imposition of a 2 year sentence (rather than, for example, a sentence of 1 year and 11 months) meant that s 11(1) of the Act was engaged. Her Honour was required by that provision to fix a non-parole period, notwithstanding her intention to combine the imprisonment with…

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 Deng-Mabior v The Queen

Details

AGLC: Deng-Mabior v The Queen [2015] VSCA 179
Case: [2015] VSCA 179
Decision Date: 17 July 2015

CaseChat Overview and Summary

In the case of Deng-Mabior v The Queen, the defendant appealed against his sentence for recklessly causing serious injury. The appeal was heard by the Supreme Court of Queensland, which found that the trial judge had failed to fix a non-parole period for the defendant's sentence. The case involved the defendant being sentenced to two years' imprisonment with a two-year community correction order (CCO). However, the court determined that the judge did not comply with the statutory requirement to set a non-parole period under the Sentencing Act 1991.

The primary legal issue before the court was whether the omission of a non-parole period rendered the sentence invalid. The court considered the Crown's concession that the trial judge had erred in not fixing the non-parole period. The court also examined whether the sentence was a combination sentence, which requires a non-parole period to be set. After reviewing the relevant provisions of the Sentencing Act, the court concluded that the omission of the non-parole period was a procedural error that necessitated a re-sentencing.

Upon re-sentencing, the court took into account the Crown's concession and the appropriate range of sentences for the offence. The defendant was ultimately sentenced to 18 months' imprisonment with a two-year CCO, with additional conditions imposed. The court found this sentence to be appropriate, given the circumstances of the offence and the defendant's background. The Supreme Court's decision highlights the importance of adhering to statutory requirements when imposing a combination sentence and the consequences of failing to do so.

Orders