DPP v Rongonui

Case [2007] VSCA 274


SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 159 of 2007

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT RONGONUI

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JUDGES:

MAXWELL P, ASHLEY and KELLAM JJA

WHERE HELD:

SALE

DATE OF HEARING:

15 October 2007

DATE OF JUDGMENT:

7 December 2007

MEDIUM NEUTRAL CITATION:

[2007] VSCA 274

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CRIMINAL LAW – Sentencing – Crown appeal – Aggravated burglary – Intentionally causing injury – Offences committed while offender on parole – Parole subsequently cancelled – Sentencing judge ordered partial concurrency with imprisonment consequent upon cancellation of parole – Absence of exceptional circumstances – Whether order for concurrency open – Whether sentence manifestly inadequate – Sentencing discretion re-opened – Relevance of subsequent violent offending to prospects of rehabilitation – Sentencing Act 1991, s 16(3B).

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APPEARANCES: Counsel Solicitors
For the Crown Mr M A Gamble SC with Ms D I Piekusis

Ms A Cannon, Solicitor for Public Prosecutions

For the Respondent Mr I D Hill QC with
Ms M Fox
Dotchin & Co

MAXWELL P:

  1. This appeal by the Crown against sentence rests on two grounds, both of which in my opinion must succeed. The first is that the sentence which the trial judge imposed contravened s 16(3B) of the Sentencing Act.  The second is that the sentence was manifestly inadequate, that is, it was so clearly outside the range reasonably open in the circumstances as to constitute error of principle.  My reasons are as follows. 

Circumstances of the offending

  1. On 28 July 2005, the victims (L and R) were asleep in an upstairs bedroom.  At 1.20 am they were woken by the respondent, who was standing at the foot of their bed yelling ‘Where’s Michael?’.  The respondent held a golf club over his shoulders ready to be swung.  He said ‘Get the fuck up’ and said to L ‘I am going to fucking kill you’.  He swung the golf club and hit L in the bicep, L having raised his right arm to block the blow. 

  1. L jumped out of bed and started punching the respondent to the face, struggling to grab the golf club.  R also got out of bed and the respondent said to her, ‘Don’t move, bitch, don’t fucking move.’  R managed to escape from the room, screaming.  L then asked the respondent who he was and what he was doing.  The respondent replied:  ‘You raped my mother.  You raped my mother.  My mum’s dead.’

  1. The wrestling between them continued inside the bedroom and then outside.  The bedroom wall was damaged.  They fell about half way down the stairs.  L grabbed the stair handrail.  The respondent ran down the stairs and out the front door.  He then ran away.  L then saw a second man in the doorway.  That  person (who has not been identified) ran at L and threw a piece of timber at him.  The timber hit the door.  Another resident of the house was woken by the altercation.  Both he and L called police. 

  1. The respondent was arrested and interviewed on 15 December…

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DPP v Rongonui [2007] VSCA 274
Case
[2007] VSCA 274
Decision Date

CaseChat Overview and Summary

The case of the Director of Public Prosecutions v Rongonui was heard in the Court of Appeal. The appellant, the Director of Public Prosecutions, sought to appeal the sentence handed down to the respondent, Rongonui, who was convicted of aggravated burglary, causing injury, and committing offences while on parole. The appeal focused on the sentencing order that imposed partial concurrency with imprisonment following the cancellation of the respondent's parole. The primary legal issues before the court were whether the sentencing judge had the authority to order partial concurrency in the absence of exceptional circumstances, whether the sentence was manifestly inadequate, and whether the sentencing discretion was re-opened in light of the respondent's subsequent violent offending.

The court examined the relevant provisions of the Sentencing Act 1991 and the established case law. It was determined that the sentencing judge did not have the authority to order partial concurrency without the presence of exceptional circumstances. The court noted that the absence of exceptional circumstances was a significant factor in the original sentencing decision. Additionally, the court found that the sentence was not manifestly inadequate, as the sentencing judge had considered the respondent's criminal history and the seriousness of the offences committed. However, the court did find that the sentencing discretion was re-opened due to the respondent's subsequent violent offending, which was relevant to the prospects of rehabilitation.

In light of the findings, the court allowed the appeal and re-sentenced the respondent. The court imposed a total effective custodial sentence of seven years and three months, with a non-parole period of four years and three months. The court emphasised that the respondent's subsequent violent offending was a crucial factor in the re-sentencing decision, as it demonstrated a lack of rehabilitation and a continued risk to the community. This case serves as a reminder of the importance of considering exceptional circumstances and the relevance of subsequent offending when determining an appropriate sentence.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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