DPP v Rongonui - [2007] VSCA 274

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 159 of 2007

DIRECTOR OF PUBLIC PROSECUTIONS
	v
ROBERT RONGONUI

---

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

---

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).

---

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:

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

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.

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.’

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.

The respondent was arrested and interviewed on 15 December…

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 Rongonui

Details

AGLC: DPP v Rongonui [2007] VSCA 274
Case: [2007] VSCA 274
Decision Date: 7 December 2007

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