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Deng v The King

Deng v The King

Case [2024] VSCA 19 6 March 2024

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0246

PADIET DENG	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 February 2024
DATE OF JUDGMENT:	6 March 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 19
JUDGMENT APPEALED FROM:	[2023] VCC 1514 (Judge Wraight)

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CRIMINAL LAW – Sentence – Application for extension of time within which to seek leave to appeal against sentence – Aggravated burglary, theft, possess drug of dependence, commit indictable offence whilst on bail – TES 4 years and 4 months, with NPP of 2 years and 2 months – Manifest excess – Whether sentence of 4 years and 4 months for aggravated burglary manifestly excessive – Parity – Whether impermissible disparity between applicant’s sentence and sentences of co-accused – Complaints of manifest excess and impermissible disparity not reasonably arguable – Applicant’s proposed appeal without merit – Futile to grant extension of time – Application for extension of time refused.

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Counsel
Applicant:		Mr C Mandy SC
Respondent:		Ms DI Piekusis KC
Solicitors
Applicant:	Burn City Legal
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
MACAULAY JA:

On 16 August 2023, the applicant, together with his co-offenders, Kensa Ibsa, Bishoy George and Eric Bizimungu, pleaded guilty in the County Court to one charge of aggravated burglary,[1] one charge of theft[2] and one charge of possessing a drug of dependence.[3] The applicant, George and Bizimungu also pleaded guilty to the related summary offence of committing an indictable offence whilst on bail.[4]
[1]Contrary to s 77(1) of the Crimes Act 1958.
[2]Contrary to s 74(1) of the Crimes Act 1958.
[3]Contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981.
[4]Contrary to s 30B of the Bail Act 1977.
A joint plea hearing was conducted and, on 24 August 2023, the applicant, Ibsa, George and Bizimungu were sentenced as follows:

The Applicant

Charge Offence Maximum Sentence Cumulation

1 Aggravated burglary (enter with intent to steal, person present and offensive weapon) 25 years 4 years and 4 months Base

3

Theft

10 years

7 days

4

Possess drug of dependence (cannabis)

5 years

1 month

Related Summary Offence

6

Commit indictable offence whilst on bail

3 months or

30 penalty units

Convicted and

discharged

TotalEffectiveSentence: 4 years and 4 months

Non-ParolePeriod: 2 years and 2 months

Section6AAAStatement: 5 years and 6 months with a non-parole period of 3 years and 6 months

Otherrelevantorders: 610 days declared as pre-sentence detention

Kensa Ibsa

Charge Offence Maximum Sentence Cumulation

1
Aggravated burglary (enter with intent to steal, person present and offensive

weapon)
25 years
118 days with a 3 year

CCO
Base

3

Theft

10 years

Aggregate

fine of $1,000

4

Possess drug of dependence (cannabis)

5 years

Aggregate

fine of $1,000

Related Summary Offence

6

Commit indictable offence whilst on bail

3 months or

30 penalty units

Convicted and discharged

TotalEffectiveSentence: 118 days (time served) with a 3 year Community Correction Order (‘CCO’)

Non-ParolePeriod: N/A

Section6AAAStatement: 3…

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 v The King

Details

AGLC: Deng v The King [2024] VSCA 19
Case: [2024] VSCA 19
Decision Date: 6 March 2024

CaseChat Overview and Summary

The appellant, Deng, sought an extension of time to appeal against his sentence for aggravated burglary, theft, possession of a drug of dependence, and committing an indictable offence while on bail. The sentence imposed was a total effective sentence (TES) of 4 years and 4 months, with a non-parole period (NPP) of 2 years and 2 months. The High Court was asked to determine whether the sentence was manifestly excessive and whether there was an impermissible disparity between the appellant's sentence and those of his co-accused.

The primary legal issues were whether the sentence was manifestly excessive and whether there was an impermissible disparity between the appellant's sentence and those of his co-accused. The court considered the principle of parity in sentencing and the need to ensure sentences are proportionate and just. The court also evaluated the merits of the proposed appeal based on the complaints of manifest excess and impermissible disparity.

The court found that the complaints of manifest excess and impermissible disparity were not reasonably arguable. The sentence imposed was within the range of sentences that could be considered appropriate for the offences committed. Furthermore, the court noted that the disparity in sentencing between the appellant and his co-accused did not amount to an impermissible disparity. The proposed appeal was deemed to be without merit, and it was therefore futile to grant an extension of time. Consequently, the application for an extension of time was refused.

No further orders were made.

Orders