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Galuak v The Queen

Galuak v The Queen

Case [2015] VSCA 300 16 November 2015

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0145

JAL GALUAK	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WHELAN and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 November 2015
DATE OF JUDGMENT:	16 November 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 300
JUDGMENT APPEALED FROM:	DPP v Galuak (Unreported, County Court of Victoria, Judge Wilmoth, 26 June 2015)

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CRIMINAL LAW – Appeal – Sentence – Rape – Sentence of 5 years’ imprisonment – Appellant aged 13 years at time of offending and 21 at time of sentence – Youth – Totality – Whether sentence manifestly excessive – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J E McLoughlin	Victoria Legal Aid
For the Respondent	Ms D Piekusis	Office of Public Prosecutions

WHELAN JA:

The appeal should be dismissed for the reasons given by Priest JA.

PRIEST JA:

Introduction

Pursuant to leave granted on 5 October 2015, this appeal is brought against a sentence of five years’ imprisonment imposed on the appellant on 26 June 2015 for rape. The appellant relies on the following grounds:

1. The sentence is manifestly excessive in the light of
a. The early plea of guilty accompanied by remorse.
b. The [appellant’s] youth at the time of the offence.
c. The fact that the [appellant] was a youthful offender at the time of sentence.
d. The delay in the prosecution.
e. The [appellant’s] deprived and traumatic childhood.
f. The fact that the [appellant] suffered from PTSD at the time of the offence and continues to suffer from it.
g. The likelihood that imprisonment will be more burdensome for the [appellant] because of his background and traumatic history.
h. The fact that the [appellant] at around the time of the offence was assessed as having an intellectual disability.
i. The fact that the [appellant] had been in custody on other matters for 2 years 9 months as at the time of this sentence including 15 months during which he had been eligible for parole.

2. The learned sentencing Judge erred in applying the principle of totality by failing to consider what an appropriate total sentence would be for the present and the earlier offending.
3. The learned sentencing Judge erred in failing to take into account that the [appellant] remained a youthful offender at the time of sentence.

For the reasons that follow, I would dismiss the appeal.

Background

As I observed when granting leave to appeal, although there is some doubt about his exact age,[1] the appellant was aged 13 years on 8 April 2007 when he committed a terrifying rape on his 17 year old female victim.
[1]Immigration papers show the appellant’s ‘nominal’ date of birth to be 1 August 1993, but his Victoria Police Criminal History report records it as being 1 September 1993.

The appellant pleaded guilty to the rape in the County Court on 23 June 2015, and on 26 June 2015 was sentenced to be imprisoned for five years. Since the appellant was undergoing another…

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 Galuak v The Queen

Details

AGLC: Galuak v The Queen [2015] VSCA 300
Case: [2015] VSCA 300
Decision Date: 16 November 2015

CaseChat Overview and Summary

Galuak appealed against his sentence for rape, imposed after he was convicted by a jury. The appellant, Galuak, was 13 years old when he committed the offence of rape, and 21 when he was sentenced to five years' imprisonment. The Crown accepted that the appellant was a youth at the time of the offence but submitted that the sentence was appropriate given the gravity of the offence. The appellant contended that the sentence was manifestly excessive.

The central legal issue before the court was whether the sentence was manifestly excessive in all the circumstances, including the appellant's age at the time of the offence and his age at the time of sentencing. The court examined the totality principle, which requires consideration of the overall punishment in relation to the gravity of the offence and the circumstances of the offender. The court also considered the appellant's age at the time of the offence and his age at the time of sentencing, as well as his prospects of rehabilitation.

The court held that the sentence was not manifestly excessive. It found that the sentence reflected the gravity of the offence and was proportionate to the appellant's culpability. The court acknowledged that the appellant was a youth at the time of the offence, but noted that he was 21 at the time of sentencing and had a significant criminal history. The court also considered the totality principle and found that the sentence was appropriate in all the circumstances. The appeal was dismissed.

No additional orders were made by the court.

Orders