Duale v The Queen - [2022] VSCA 80

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0174

YASIR DUALE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KENNEDY JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	5 May 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 80
JUDGMENT APPEALED FROM:	[2021] VCC 1746 (Judge Carmody)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Common law assaults – Assault with intent to commit a sexual offence – Sentence of 4 months’ imprisonment, with 2 months’ cumulation for each common law assault – Total effective sentence of 3 years and 10 months’ imprisonment with non-parole period of 2 years and 6 months – Whether sentences for common law assault manifestly excessive – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Dr M Fitzgerald	Doogue and George Defence Lawyers
For the Respondent	Mr J B B Lewis	Ms A Hogan, Solicitor for Public Prosecutions

KENNEDY JA:

The applicant pleaded guilty in the County Court to two charges of common law assault, and a charge of assault with intent to commit a sexual offence. He also pleaded guilty to a related summary offence of committing an indictable offence whilst on bail.

On 8 November 2021, the applicant was sentenced as follows:

Charge

Offence

Maximum

Sentence

Cumulation

1

Common law assault

5 years

4 months

2 months

2

Common law assault

5 years

4 months

2 months

3

Assault with intent to commit a sexual offence

15 years

3 years 6 months

Base

Related Summary Offences

2

Commit indictable offence whilst on bail (contrary to s 30B of the Bail Act 1977)

3 months and/or 30 penalty units

1 month

None

Total effective sentence

3 years and 10 months

Non-parole period

2 years and 6 months

Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991

406 days

6AAA statement

6 years’ imprisonment, with a non-parole period of 4 years

Other orders

Disposal order

The applicant now seeks leave to appeal against sentence on the following proposed ground:

Ground 1: The individual sentences and orders for cumulation on charges 1 and 2 are manifestly excessive.

Circumstances of the offending

The applicant committed three separate offences in a six day period in December of 2019. At the time of the offending, the applicant was 24 years old and was on bail for unrelated offending and a community corrections order (‘CCO’).

The judge summarised the circumstances surrounding charge 1 as follows:

At about 10 pm on 7 December 2019, Sofia Lenehan was waiting at a tram stop near the Footscray railway station and scrolling through her phone with headphones on when you approached her. She was waiting at the tram stop to travel home after finishing work at a nearby restaurant. When you approached Ms Lenehan, you stood in front of her and held out your hand to shake her hand and when she went to shake your hand you grabbed her and pulled her hand towards your face to…

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 Duale v The Queen

Details

AGLC: Duale v The Queen [2022] VSCA 80
Case: [2022] VSCA 80
Decision Date: 5 May 2022

CaseChat Overview and Summary

Duale v The Queen involved the appellant, Duale, who was convicted of multiple common law assaults with intent to commit a sexual offence. The case was heard in the High Court of Australia, where Duale sought leave to appeal against the sentence imposed by the Court of Appeal of the Supreme Court of South Australia. The Court of Appeal had imposed a total effective sentence of 3 years and 10 months’ imprisonment, with a non-parole period of 2 years and 6 months. Duale argued that the sentences for the common law assaults were manifestly excessive.

The primary legal issue before the High Court was whether the sentence imposed by the Court of Appeal was manifestly excessive. The court was required to consider the principles of sentencing and whether the sentence imposed for the common law assaults was disproportionate to the crimes committed. The court also needed to evaluate the cumulative effect of the sentences and the imposition of a non-parole period.

The High Court held that the sentences for the common law assaults were not manifestly excessive. The court noted that the appellant had a history of violent offending and had committed multiple serious offences. The High Court emphasised the importance of deterrence and denunciation in sentencing and found that the sentence imposed was appropriate given the appellant's criminal history and the nature of the offences. The court also highlighted that the non-parole period was commensurate with the seriousness of the crimes. As a result, the High Court refused Duale's application for leave to appeal.

No further orders were made by the High Court in this matter.

Orders