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DPP v Majok

DPP v Majok

Case [2017] VSCA 135 14 June 2017

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0044

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
DAVID DANIEL MAJOK	Respondent

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JUDGES:	PRIEST, KYROU and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 June 2017
DATE OF JUDGMENT:	14 June 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 135	First revision: 14 June 2017
JUDGMENT APPEALED FROM:	[2017] VSC 72 (Croucher J, 27 February 2017)

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CRIMINAL LAW – Appeal against sentence – Reckless conduct endangering life – Respondent sentenced with conviction to serve Community Correction Order for 18 months with conditions – Whether judge erred in finding the fact that the deceased was killed was not to be taken into account in sentencing – Whether judge erred in finding the respondent lacked the appropriate appreciation of the risks – Whether sentence manifestly inadequate – Appeal dismissed – R v Toms [2006] VSCA 101; R v Lam [2006] VSCA 162 considered.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms K Judd QC with Ms G Coghlan	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr D A Dann QC with Mr M Gumbleton	Ms M Walker

PRIEST JA
KYROU JA
KAYE JA:

The respondent pleaded guilty to one charge of reckless conduct endangering life. That charge arose from an incident involving the respondent on 10 January 2015, as a result of which the victim, Kuach Deng (‘Deng’), died. The respondent was sentenced to serve a Community Correction Order for a period of 18 months, with conviction, with conditions that he complete 100 hours of unpaid community work over a period of nine months, undergo health assessment and treatment and rehabilitation, and submit to judicial monitoring.[1]
[1]R v Majok [2017] VSC 72 (‘Reasons’).

The Director of Public Prosecutions has appealed against the respondent’s sentence on the following three grounds:

Ground 1:The learned sentencing judge erred by finding that the fact the deceased was killed was not a matter to be taken into account in sentencing.
Ground 2:The learned sentencing judge erred by finding that the respondent lacked appropriate appreciation of the risks associated with engaging in a dispute with someone while standing on or beside a busy road at night.
Ground 3:The sentence imposed was manifestly inadequate in that the learned sentencing judge —
(a)Failed properly to reflect the gravity of the offending;
(b)Failed to give sufficient weight to the sentencing principles of just punishment, protection of the community, denunciation, general deterrence and specific deterrence;
(c)Failed to have sufficient regard to the maximum penalty for the offence;
(d)Gave too much weight to mitigating factors concerning the respondent.

Circumstances of offending

The respondent was born on 26 November 1994, and at the time of the offence was 20 years of age. The victim, Kuach Deng, was 26 years of age at the time of his death.

The respondent had met Deng through his sister, Suzie Majok. At that time, she was living at premises in St Albans, which were located on the corner of Furlong Road. Ms Majok…

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 DPP v Majok

Details

AGLC: DPP v Majok [2017] VSCA 135
Case: [2017] VSCA 135
Decision Date: 14 June 2017

CaseChat Overview and Summary

The appellant, the Director of Public Prosecutions, sought to appeal a sentence imposed on the respondent, who was convicted of reckless conduct endangering life. The case was heard in the Court of Appeal in Victoria. The respondent had been sentenced to a Community Correction Order for 18 months, with various conditions attached. The appeal centred on whether the trial judge erred in their approach to sentencing by not considering the fact that the deceased was killed, and whether the trial judge was correct in finding that the respondent lacked the appropriate appreciation of the risks.

The court considered whether the trial judge was correct to exclude the fact that the deceased was killed from consideration in sentencing, and whether the trial judge was correct to find that the respondent lacked the appropriate appreciation of the risks. The court examined the principles set out in R v Toms and R v Lam, considering the role of the court in sentencing and the appropriate weight to be given to the fact that the deceased was killed. The court found that the trial judge had not erred in their approach, and that the sentence was not manifestly inadequate.

The appeal was dismissed. The court found that the trial judge had considered all relevant factors in sentencing and had not erred in their approach. The court found that the sentence imposed was appropriate in the circumstances, and that the respondent had not demonstrated that the sentence was manifestly inadequate. The court considered the principles set out in R v Toms and R v Lam, and found that the trial judge had correctly applied those principles in sentencing the respondent. The court found that the sentence imposed was appropriate and that the appeal should be dismissed.

Orders