| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0170 |
| ISMAEL MALBEAL | Appellant |
| v | |
| THE KING | Respondent |
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| JUDGES: | TAYLOR and KAYE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 March 2025 |
| DATE OF JUDGMENT: | 11 April 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 71 |
| JUDGMENT APPEALED FROM: | DPP v Malbeal [2023] VCC 1568 (Judge Chettle) |
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CRIMINAL LAW – Appeal – Sentence – Appellant pleaded guilty to two charges of rape – Sentenced to total effective sentence of 11 years’ imprisonment with non-parole period of 7 years and 3 months – Mitigating circumstances – Early pleas of guilty – Frank admissions – Appellant Vanuatuan citizen with limited understanding of English language – Prospects of deportation following sentence – No previous offending – Principle of totality – Whether total effective sentence manifestly excessive – Appeal allowed.
Crimes Act 1958, s 38, referred to.
Brown v The Queen (2019) 59 VR 462; Abdullahi v The King [2023] VSCA 110; Director of Public Prosecutions v Frank [2021] VSCA 163; Watkins (a pseudonym) v The King [2023] VSCA 203; Director of Public Prosecutions vDalgliesh (2017) 262 CLR 428, referred to.
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| Counsel | |||
| Appellant: | Mr R Thyssen | ||
| Respondent: | Mr RL Gibson KC | ||
Solicitors | |||
| Appellant: | Swan Hill Legal Co. | ||
| Respondent: | A Hogan, Solicitor for Public Prosecutions | ||
TAYLOR JA
KAYE JA:
The appellant pleaded guilty in the County Court to two charges of rape. After a plea made on his behalf, he was sentenced to a total effective sentence of 11 years’ imprisonment, with a non‑parole period of 7 years and 3 months. That sentence was comprised as follows:
| Charge | Offence | Maximum | Sentence | Cumulation |
| Indictment N12614276.1 | ||||
| 1 | Rape (s 38(1) of the Crimes Act 1958) | 25 years | 8 years | Base |
| 2 | Rape (s 38(1) of the Crimes Act 1958) | 25 years | 8 years | 3 years |
| Total Effective Sentence | 11 years | |||
| Non-Parole Period: | 7 years 3 months | |||
| Pre-Sentence Detention declaration pursuant to s 18(1) of the Sentencing Act 1991: | 272 days | |||
| Section 6AAA Statement: | 15 years with a non-parole period of 10 years | |||
| Other relevant orders: | n/a | |||
On 13 February 2024, McLeish JA granted that appellant leave to appeal on the following ground:
The sentence imposed and the non‑parole period are manifestly excessive in that they fail to take into account and/or give weight to a number of mitigating factors put on behalf of the Appellant.
Circumstances of offending
At the time of the offending, the appellant was 27 years of age. He is a citizen of Vanuatu. In July 2022, he came to Australia on a temporary work visa as part of a labour hire arrangement. At the time of the offending, he was engaged in work on farms in the Swan Hill district, picking oranges and peaches.
The victim of the two offences, TT,[1] was 26 years of age at the time of the offences. Three days before the offending, TT was employed by the Swan Hill Holiday Park as a cleaner, and she was…
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- AGLC
- Ismael Malbeal v The King [2025] VSCA 71
- Case
- [2025] VSCA 71
- Decision Date
CaseChat Overview and Summary
The Court of Appeal had to decide whether the total effective sentence imposed was manifestly excessive, taking into account the principle of totality and the mitigating factors presented. The court referenced several precedents, including Brown v The Queen, Abdullahi v The King, Director of Public Prosecutions v Frank, Watkins (a pseudonym) v The King, and Director of Public Prosecutions v Dalgliesh. The court considered the mitigating circumstances and the principle of totality, which requires that the overall sentence must not be manifestly excessive.
In its judgment, the Court of Appeal allowed the appeal and set aside the original sentences, substituting them with a sentence of 7 years’ imprisonment on each charge, with 18 months of the sentence on charge 2 to be served cumulatively on the sentence imposed on charge 1. The total effective sentence was thus reduced to 8 years and 6 months’ imprisonment, with a non-parole period of 6 years. The Court noted that if Malbeal had not pleaded guilty, he would have received a total effective sentence of 11 years and 6 months’ imprisonment with an 8-year non-parole period.
The Court of Appeal made orders to reflect the new sentencing arrangement, allowing the appeal and setting aside the original sentences. The new sentences imposed a total effective term of 8 years and 6 months’ imprisonment, with a non-parole period of 6 years. This decision was based on the mitigating factors and the principle of totality, ensuring that the sentence was not manifestly excessive.
Orders
Orders of the court
55. Accordingly, we will make orders to the following effect:
55. 1. The appeal is allowed.
55. 2. The sentences imposed on charges 1 and 2 be set aside, and in lieu, the appellant be sentenced to 7 years’ imprisonment on each charge.
55. 3. It be directed that 18 months of the sentence on charge 2 be served cumulatively on the sentence imposed on charge 1, so that the total effective sentence is 8 years 6 months’ imprisonment.
55. 4. The appellant serve a minimum of 6 years before he is eligible for parole.
55. 5. We would declare that, pursuant to s 6AAA of the Sentencing Act 1991, if the appellant had not pleaded guilty to the two charges, he would have been sentenced to a total effective sentence of 11 years and 6 months’ imprisonment with a non‑parole period of 8 years.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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