Fonua v The King - [2022] VSCA 213

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0081

TAULEVA FONUA	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 September 2022
DATE OF JUDGMENT:	30 September 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 213
JUDGMENT APPEALED FROM:	[2022] VCC 908 (Judge Hogan)

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CRIMINAL LAW – Sentence – Appeal – Intentionally cause injury, robbery and theft – Brutal, cowardly and vicious attack – Prior criminal history – TES of 3 years and 1 month, with NPP of 2 years – Whether sentence manifestly excessive – Whether sentence breached principle of totality – Not reasonably arguable that sentence manifestly excessive – Not reasonably arguable that principle of totality breached – Application for leave to appeal refused.

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Counsel
Applicant:		Ms JL Clark
Respondent:		Mr JCJ McWilliams
Solicitors
Applicant:	Tony Hannebery Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
T FORREST JA:

The applicant pleaded guilty in the County Court to one charge of intentionally causing injury,[1] one charge of robbery,[2] one charge of theft[3] and a related summary offence of committing an indictable offence while on bail.[4] On 31 May 2022, following a plea hearing conducted on 26 and 27 April 2022, the applicant was sentenced as follows:
[1]Contrary to s 18 of the Crimes Act 1958.
[2]Contrary to s 75 of the Crimes Act 1958.
[3]Contrary to s 74 of the Crimes Act 1958.
[4]Contrary to s 30B of the Bail Act1977.

Charge	Offence	Maximum	Sentence	Cumulation
1	Intentionally cause injury	10 years	2 years	Base
2	Robbery	15 years	18 months	6 months
3	Theft	10 years	18 months	6 months
RSO	Commit indictable offence on bail	3 months	1 month	1 month
Total Effective Sentence:		3 years and 1 month
Non-Parole Period:		2 years
Pre-sentence Detention:		313 days
Section 6AAA Statement:		5 years with a NPP of 3 years and 8 months

The applicant now seeks leave to appeal on the following proposed grounds:
1.The individual sentences, non-parole period and total effective sentence are manifestly excessive.
2.The sentencing judge erred by imposing a sentence that offended the principle of totality.

Circumstances of the offending

The applicant committed his offending together with two co-offenders, Raymond Livori and Asipeli Vea. Their victim was a 45 year old man, Daniel Corcoran. Mr Corcoran had known Livori for about eight months, having met through a friend. Mr Corcoran had met the applicant a few times. He had not met Vea prior to the offending.
On 8 February 2020, Livori had been fighting with his girlfriend, Belinda Showler. Mr Corcoran came over by request to help settle Livori down, ultimately taking Ms Showler back to his address in Melton for a few hours. Later that day, Mr Corcoran dropped Ms Showler back to Livori’s address. Over the following days, Livori sent messages and called Mr Corcoran a number of times, asking him to come to his house. He also left threatening voicemails. It is…

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.

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Details

Case: [2022] VSCA 213
Decision Date: 30 September 2022

CaseChat Overview and Summary

In the case of Fonua v The King, the appellant was convicted for his role in an attack that resulted in the intentional infliction of injury, robbery, and theft. The matter was brought before the court on an appeal against sentence, where the appellant challenged the severity of the imposed term of imprisonment. The court was required to consider whether the sentence was manifestly excessive and whether it breached the principle of totality.

The primary legal issue before the court was whether the sentence of three years and one month, with a non-parole period of two years, was manifestly excessive. Additionally, the court had to determine if the sentence violated the principle of totality, which requires that the total punishment for all offences not be disproportionate to the gravity of the criminal conduct. The appellant argued that the sentence was too harsh given his prior criminal history and the mitigating factors presented.

The court found that the sentence was not manifestly excessive, considering the nature and circumstances of the offences. The attack was described as brutal, cowardly, and vicious, which warranted a substantial punishment. The court also concluded that the principle of totality was not breached, as the total sentence was proportionate to the gravity of the crimes committed. The appeal was dismissed, and the application for leave to appeal was refused.

The final orders of the court upheld the original sentence, confirming that the term of imprisonment was neither manifestly excessive nor in breach of the principle of totality. The court's decision highlighted the importance of considering the severity of the crimes and the need for an appropriate punishment in cases of violent offences.

Orders