Gumwel v The Queen - [2016] VSCA 14

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0151

KOYOCK GUMWEL	Applicant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 February 2016
DATE OF JUDGMENT:	18 February 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 14
JUDGMENT APPEALED FROM:	DPP v Gumwel (Unreported, County Court of Victoria, Judge Jordan, 26 June 2015)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Intentionally causing serious injury – Glassing – Sentence of 5 years imprisonment with non-parole period of 3 years – Prior convictions for violence – Relevance of general deterrence – Serious example of serious offence – Manifest excess – Not reasonably arguable that sentence manifestly excessive – Alleged errors in trial judge’s reasons not reasonably arguable – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Langton	Revill and Papa lawyers
For the Respondent	Mr B F Kissane QC	Mr J Cain, Solicitor for Public Prosecutions

REDLICH JA
BEACH JA:

Introduction

On 17 June 2015, following a trial in the County Court, the applicant was found guilty of one charge of intentionally causing serious injury (charge 2). The applicant was acquitted of an alternative charge of recklessly causing serious injury (charge 3) and a charge of common assault relating to a separate incident (charge 1).

On 26 June 2015, following a plea hearing, the trial judge sentenced the applicant to a term of imprisonment of five years with a non-parole period of three years.

On 6 October 2015, Priest JA refused the applicant’s application for leave to appeal against his sentence. Pursuant to s 315(2) of the Criminal Procedure Act 2009, the applicant has elected to renew his application, and seeks leave to appeal against his sentence on the following grounds:

1.The learned trial judge erred in his reasons for elevating general deterrence above other sentencing objectives.
2,The learned trial judge incorrectly described the offence as a ‘serious example’ of such offences.

3. The sentence imposed was manifestly excessive in that:
(i)His Honour gave insufficient weight to the fact that the serious injuries were caused in the context of an affray that had been initiated by the complainant.
(ii)His Honour gave undue weight to the complainant’s level of intoxication.

Circumstances of the offending

The offence occurred on 1 November 2013. In his reasons for refusing leave to appeal, Priest JA described the offending as follows:

About two weeks prior to the instant offence, the applicant and the victim were involved in a brief fight, and were separated by associates. They had known each other for approximately two years.
During the afternoon of 31 October 2013, the victim had been drinking with friends. He continued to drink into the early hours of the next morning, 1 November 2013. Following apprehension by police whist driving, the victim was breathalysed and was found to have a blood alcohol concentration of 0.157 per cent. He was released from the police station at 5:38am.
After his…

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 Gumwel v The Queen

Details

AGLC: Gumwel v The Queen [2016] VSCA 14
Case: [2016] VSCA 14
Decision Date: 18 February 2016

CaseChat Overview and Summary

The appellant, Gumwel, was convicted of intentionally causing serious injury by glassing the victim. He was sentenced to five years' imprisonment with a non-parole period of three years. Gumwel sought leave to appeal against his sentence, arguing it was manifestly excessive. The High Court of Australia was tasked with determining whether the sentence was appropriate and whether there were grounds for leave to appeal.

The legal issues before the court were whether the sentence imposed by the trial judge was manifestly excessive and whether there were any errors in the trial judge’s reasoning that were reasonably arguable. The court considered the principles of sentencing in cases of intentional serious injury, the relevance of general deterrence, and the significance of the appellant's prior convictions for violent offences. The court also assessed whether the sentence was a serious example of a serious offence and whether it was appropriate to consider general deterrence.

The court found that the sentence of five years with a non-parole period of three years was not manifestly excessive. It considered the nature of the offence, the appellant's prior convictions, and the need for general deterrence. The court held that the sentence was a serious example of a serious offence and that the need for general deterrence was relevant. The alleged errors in the trial judge’s reasons were not reasonably arguable. Consequently, the application for leave to appeal was refused.

Orders