JUDGES:	MAXWELL P, REDLICH and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 March 2017
DATE OF JUDGMENT:	30 August 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 223
JUDGMENT APPEALED FROM:	[2015] VSC 713 (Warren CJ)

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CRIMINAL LAW – Appeal – Sentence – Incitement to murder – Offender incited murder of de facto wife – Active participation by offender – Lured victim into danger – Sentence nine years’ imprisonment – Non-parole period six years – Whether manifestly excessive – Highest sentence yet imposed for this offence – Characterised by Crown as approaching ‘worst category’ case – Objective seriousness in upper range – Prevalence of family violence – Gross breach of trust – High culpability – Severe victim impact – Appeal dismissed – Louizos v The Queen (2009) 194 A Crim R 223; Natale v The Queen [2011] VSCA 28 referred to – Crimes Act 1958 ss 321G, 321H.

CRIMINAL LAW – Sentencing – Principles – Consistency – Current sentencing practices for incitement to murder – Offences in upper range of seriousness – Whether current sentencing adequate – High degree of moral culpability – Disparity between sentences for murder, conspiracy to murder and incitement – Current sentencing too low and requires correction – Ashdown v The Queen (2011) 37 VR 341 applied – Sentencing Act 1991 s 5(2)(b).

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APPEARANCES:

Counsel

Solicitors

For the Applicant

Mr T R Marsh

with Mr J Cass

Victoria Legal Aid

For the Crown

Mr C B Boyce SC

Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P
REDLICH JA:

Summary

The applicant, Mr Kalala, pleaded guilty to incitement to murder, contrary to ss 321G and 321H of the Crimes Act 1958 (‘the Act’).[1] He was sentenced by the Chief Justice to nine years’ imprisonment. A non-parole period of six years was fixed.[2]
[1]There was discussion on the plea as to which provisions were properly relied upon in this respect. The penalty for this offending conduct was determined by reference to the Code Pénal [Burundi], and in particular Article 211, which states that the offence is punishable by life imprisonment.
[2]DPP v Kalala [2015] VSC 713 [48] (‘Reasons’).

His sole ground of appeal is that the head sentence and non-parole period are manifestly excessive, having regard to his plea of guilty, personal factors in mitigation and current sentencing practices for the offence of incitement to murder. For reasons which follow, we would grant leave to appeal but dismiss the appeal. In our view, the sentence imposed was within the range reasonably open to the judge in the circumstances of the case, proper weight being given to both aggravating and mitigating factors.[3]
[3]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (‘Clarkson’).

Before the Chief Justice the Crown placed the objective gravity of the offending as in the upper category of seriousness and as approaching ‘a worst case’. The applicant disputed…

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 Kalala v The Queen

Details

AGLC: Kalala v The Queen [2017] VSCA 223
Case: [2017] VSCA 223
Decision Date: 30 August 2017

CaseChat Overview and Summary

In the case of Kalala v The Queen, the defendant was convicted for instigating the murder of his de facto wife. The appeal focused on the severity of the sentence, which was nine years' imprisonment with a non-parole period of six years. The appellant argued that the sentence was manifestly excessive, especially considering it was the highest sentence yet imposed for this specific offence. The Crown, however, characterised the case as approaching the 'worst category', highlighting the objective seriousness of the crime, which involved a gross breach of trust and a high level of culpability.

The legal issues before the court involved whether the sentence was manifestly excessive and if the current sentencing practices for incitement to murder adequately reflected the seriousness of the offence. The appellant's counsel argued that the disparity between sentences for murder, conspiracy to murder, and incitement indicated that the current sentencing for incitement was too low and needed correction. The court considered relevant precedents, including Louizos v The Queen and Natale v The Queen, and examined the principles of consistency in sentencing as outlined in the Sentencing Act 1991.

The court found that the sentence was not manifestly excessive, taking into account the severe victim impact and the high culpability of the offender. The court acknowledged the prevalence of family violence and the breach of trust inherent in the case. It also considered the principle of consistency in sentencing, referencing Ashdown v The Queen, but concluded that the current sentencing practices for incitement to murder were adequate. Therefore, the appeal was dismissed.

No further orders were made beyond the dismissal of the appeal. The court's decision reinforces the importance of considering the unique factors of each case when determining an appropriate sentence, while also upholding the principle of consistency in sentencing across similar offences.

Orders