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Kalepo v The Queen

Kalepo v The Queen

Case [2016] VSCA 220 14 September 2016

Criminal Liability

Sentencing

Recklessly Causing Serious Injury

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0123

SAMUEL KALEPO	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 September 2016
DATE OF JUDGMENT:	14 September 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 220
JUDGMENT APPEALED FROM:	DPP v Kalepo [2016] VCC 477 (Judge Hampel)

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CRIMINAL LAW – Application for leave to appeal against sentence – Applicant pleaded guilty to recklessly causing serious injury and to two charges of failing to answer bail – Sentenced to 4 years’ imprisonment on charge 1 and 2 months’ imprisonment cumulative on charges 2 and 3 – Unprovoked attack upon victim – Two punches to the face resulting in permanent injury and ongoing psychological effects – Relevance of rehabilitation for young offender – Prospect of deportation – Judge concluded that applicant not suitable for Community Correction Order by reason of past failure to comply with Court orders – Sentence within range – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J R Cass	Victoria Legal Aid
For the Crown	Mr B L Sonnet	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA
OSBORN JA:

In April of this year, the applicant pleaded guilty in the County Court at Melbourne to a charge of recklessly causing serious injury (charge 1) and two charges of failing to answer bail (charges 2 and 3). He was sentenced to 4 years’ imprisonment on charge 1, and to one month cumulative on each of charges 2 and 3. The total effective sentence was four years and two months. A non-parole period of two years and two months was fixed.

The maximum penalty for recklessly causing serious injury, contrary to s 17 of the Crimes Act 1958, is 15 years’ imprisonment. The maximum penalty for failure to answer bail, contrary to s 30(1) of the Bail Act 1977, is 12 months’ imprisonment.

The applicant now seeks leave to appeal against that sentence upon the following grounds:

1.The individual sentence on Charge 1, the total sentence from the orders of cumulation, along with the non-parole period imposed on the applicant are each manifestly excessive. In particular,
(a) in light of factors put in mitigation, the sentence demonstrates inadequate weight was given to the Applicant's rehabilitation, and undue weight was placed on general deterrence, punishment and denunciation;
(b) the sentence demonstrates that inadequate weight was given to the extra burden of imprisonment the Applicant will experience due to his personal circumstances and his knowledge of his likely deportation;
(c) in light of the objective seriousness of the offending and current sentencing practices for comparable offending.

2.The learned Sentencing Judge erred in her assessment that the Applicant was unsuitable for a CCO combined with a term of imprisonment in circumstances where such an order was proportional to the gravity of the offending. In doing so the sentence breached the principle of parsimony.

Circumstances surrounding the offending

On 27 October 2012, the applicant and two friends…

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 Kalepo v The Queen

Details

AGLC: Kalepo v The Queen [2016] VSCA 220
Case: [2016] VSCA 220
Decision Date: 14 September 2016

CaseChat Overview and Summary

Kalepo appealed against his sentence, having pleaded guilty to recklessly causing serious injury and two charges of failing to answer bail. The applicant launched an unprovoked attack, punching the victim twice in the face, which caused permanent injury and ongoing psychological effects. The sentencing judge concluded that the applicant was not suitable for a Community Correction Order due to past failure to comply with court orders. The applicant received a four-year imprisonment sentence for the first charge, and a cumulative two months for the second and third charges. The court had to decide whether the sentence was within the appropriate range, taking into account the applicant's age, the relevance of rehabilitation, and the prospect of deportation.

The primary legal issue before the court was whether the sentence imposed was within the appropriate range. The applicant argued that the sentence was excessive, while the Crown contended that the sentence was within the range and appropriately reflected the seriousness of the offending. The court had to balance the need for punishment, deterrence, and rehabilitation, considering the circumstances of the offence, the offender, and the potential impact of deportation.

In determining the appropriate sentence range, the court examined the seriousness of the offence, the applicant's age, the relevance of rehabilitation, and the prospect of deportation. The court found that the unprovoked attack was a serious breach of the peace, and the applicant's past failure to comply with court orders demonstrated a lack of rehabilitation. The court held that the sentence was within the appropriate range, and therefore, the application for leave to appeal was refused. The applicant's argument that the sentence was excessive was not persuasive, as the court found the sentence to be proportionate to the offending.

Orders