DPP v Konamala (Unreported, County Court of Victoria, Judge Lawson, 19 March 2012)
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CRIMINAL LAW — Sentence — Appeal — Armed robbery and recklessly causing injury — Mitigating factors — Risk of deportation — Whether taken into account — Whether changes to Migration Act 1958 (Cth) fresh evidence — Whether judge took into account risk of deportation — No error — Leave to appeal refused — Guden v The Queen (2010) 28 VR 288 applied — Lima Da Costa Junior v The Queen [2016] VSCA 49 followed — Migration Act 1958 (Cth) ss 501(3A), 501CA.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Ms E Van Krimpen
Victoria Legal Aid
For the Respondent
Mr D Trapnell QC
Mr J Cain, Solicitor for Public Prosecutions
MAXWELL P REDLICH JA PRIEST JA:
Introduction
Following pleas of guilty, as long ago as 19 March 2012 the applicant was sentenced in the County Court to be imprisoned for six years on a charge of armed robbery[1] (charge 1), and for five years and four years respectively on two charges of recklessly causing serious injury[2] (charges 2 and 3). Orders for partial cumulation produced a total effective sentence of eight years’ imprisonment, upon which the judge fixed a non-parole period of five years.
[1]Crimes Act 1958 s 17. The maximum penalty is 15 years’ imprisonment.
[2]Crimes Act 1958 s 75A. The maximum penalty is 25 years’ imprisonment.
Having been granted an extension of time within which to do so, somewhat belatedly the applicant sought leave to appeal against his sentence. Although the applicant originally sought to rely on two grounds,[3] ultimately only one was pressed. The ground was expressed as follows:
Changes to the Migration Act 1958 (Cth) (‘Migration Act’) (enacted in December 2014) constitute fresh evidence as espoused in R v Nguyen[4] in that these changes relate to events which have occurred since the sentence was imposed and demonstrate the true significance of facts in existence at the time of sentence.
[3]A ground which claimed that the total effective sentence and non-parole period imposed on the applicant offended the principle of parity in light of the sentence imposed on a named co‐offender was abandoned prior to the hearing in this Court.
For the reasons that follow, we would refuse leave to appeal.
The offending
So as to appreciate the objective gravity of the applicant’s offending, it is necessary to summarise its circumstances in some detail. As will become clear, the actions of the applicant, and those with whom he was complicit, were vicious.
On 14 April 2011, the applicant and three co-offenders committed an armed robbery at the ‘Jayani Jewellery’ store situated in Sydney Road, Brunswick.…
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.
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AGLC
Konamala v The Queen [2016] VSCA 48
Case
[2016] VSCA 48
Decision Date
CaseChat Overview and Summary
In the case of Konamala v The Queen, the appellant, an individual convicted of armed robbery and recklessly causing injury, sought to appeal his sentence. The appeal centred on the consideration of mitigating factors, specifically the risk of deportation upon return to his home country, and whether this factor had been appropriately weighed by the trial judge. The Court of Appeal of the Supreme Court of Victoria was tasked with reviewing the decision.
The primary legal issue was whether the trial judge had failed to take into account the risk of deportation as a mitigating factor. Additionally, the court had to determine if changes to the Migration Act 1958 (Cth) constituted fresh evidence that should be considered, and whether these changes necessitated a different outcome. The appellant argued that the risk of deportation should have been given more weight, while the prosecution contended that the risk had been adequately considered.
The Court of Appeal found no error in the trial judge’s handling of the mitigating factors, including the risk of deportation. The court held that the risk had indeed been taken into account, and that the sentence imposed was appropriate. The changes to the Migration Act were not deemed fresh evidence warranting a new consideration. The court applied the principles from Guden v The Queen and followed the decision in Lima Da Costa Junior v The Queen, emphasising that the trial judge had correctly exercised their discretion. Consequently, the appeal was dismissed, and leave to appeal to a higher court was refused.
The final orders of the court were that the appeal against sentence was dismissed, and the original sentence imposed by the trial court was upheld.