Ismael Malbeal v The King - [2025] VSCA 71

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0170

ISMAEL MALBEAL	Appellant
v
THE KING	Respondent

---

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)

---

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.

---

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…

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 Ismael Malbeal v The King

Details

AGLC: Ismael Malbeal v The King [2025] VSCA 71
Case: [2025] VSCA 71
Decision Date: 11 April 2025

CaseChat Overview and Summary

The appellant, Ismael Malbeal, appealed against his sentence following a guilty plea to two charges of rape. The case was heard by the Court of Appeal, which was tasked with determining whether the sentence was manifestly excessive. Malbeal, a Vanuatuan citizen with limited proficiency in English, was sentenced to a total effective term of 11 years’ imprisonment, with a non-parole period of 7 years and 3 months. The appeal centred on the principle of totality, considering the totality of the sentence, and the mitigating factors such as Malbeal’s early pleas of guilty and frank admissions, as well as his prospects of deportation following the completion of his sentence.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.