R v Guden, Hanna and Musa (Unreported, County Court of Victoria, Judge Barnett, 20 June 2008)
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CRIMINAL LAW – Appeal – Sentence – Threat to kill, causing serious injury intentionally – Manifest excess – Relevance of possibility of deportation – Deportation appropriately taken into account – Appeal dismissed.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr S A Moglia
Victoria Legal Aid
For the Crown
Mr T Gyorffy
Mr C Hyland, Solicitor for Public Prosecutions
MAXWELL P
BONGIORNO JA BEACH AJA:
The appellant pleaded guilty to a number of counts relating to a single incident, and was sentenced as follows:
Count
Offence
Maximum
Sentence
Cumulation
1
Threat to kill
10y
1y
6m
2
Causing serious injury intentionally
20y
4y
18m
3
Causing serious injury intentionally
20y
6y
BASE
4
Affray
5y
2y
-
7
Theft
10y
1m
-
8
Possession of a drug of dependence
1y
1m
-
Charge
Summary offence
Maximum
Sentence
Cumulation
18
Possess controlled weapon
1y
1m
-
19
Possess prohibited weapon
2y
1m
-
TES: 8y NPP: 6y Ancillary orders made: disposal order and forensic sample retention order
He appealed by leave against the sentence. At the conclusion of the hearing we dismissed the appeal. We said that we would publish our reasons subsequently. These are those reasons.
The circumstances
The appellant and two co-offenders (who were sentenced together with the appellant) had been out drinking in the city. The appellant had also injected himself with testosterone, and had taken Panadeine Forte and cold and flu tablets. The victims, JD and PD, and their friends had also been out in the city. Both parties were driving home along Dandenong Road when the offending occurred. The ‘offender’ party was in one car; the ‘victim’ party was in two separate cars.
JD tried to engage Hanna (one of the co-offenders) and another female in conversation (through the car windows). The appellant then threatened JD. The cars stopped at a red light, and the appellant got out of his car. He swung a machete at PD through an open car window and cut his arm. JD got out of his car and was punched and kicked by Musa (the other co-offender). The appellant then attacked JD with the machete. JD tried to run away but the appellant struck him in the back of the head with the machete.
Manifest excess
We were not persuaded that the sentences imposed on counts 1, 2 and 3, the head sentence or the non-parole period were manifestly excessive. Manifest excess is a difficult ground to make out, as explained by Maxwell P in R v Abbott:[1]
The ground of manifest excess will…
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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AGLC
Guden v The Queen [2010] VSCA 196
Case
[2010] VSCA 196
Decision Date
CaseChat Overview and Summary
In the case of Guden v The Queen, the appellant, Mr. Guden, contested the sentence imposed by the County Court for charges of threatening to kill and causing serious injury intentionally. The appeal was heard in the Court of Appeal of the Supreme Court of Victoria. The central issue was whether the sentence imposed was manifestly excessive, particularly considering the possibility of deportation of the appellant at the conclusion of his sentence.
The court had to determine whether the lower court's consideration of the possibility of deportation was appropriate in assessing the sentence. The appellant argued that the inclusion of this factor was improper, suggesting it was not relevant to the sentencing process. The Crown, on the other hand, contended that the potential for deportation was a relevant consideration and did not constitute a manifest excess in the sentence.
The court found that the possibility of deportation was a pertinent factor in the sentencing process, as it had a bearing on the overall punishment and its impact on the appellant. The court held that the sentence was not manifestly excessive, as it had appropriately taken into account the possibility of deportation. Consequently, the appeal was dismissed, and the original sentence was upheld.
No additional orders were made by the court beyond the dismissal of the appeal.