Deng v The King

Case [2024] VSCA 19


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:

  1. 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.

  2. 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…

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Details
AGLC
Deng v The King [2024] VSCA 19
Case
[2024] VSCA 19
Decision Date

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.

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