JUDGES:	MAXWELL P and WEINBERG JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 May 2019
DATE OF JUDGMENT:	13 May 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 102
JUDGMENT APPEALED FROM:	DPP v Magedi (Unreported, County Court of Victoria, Judge Fox, 3 August 2018)

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CRIMINAL LAW – Appeal – Sentence – New evidence – Risk of deportation – Robbery, common assault (2), indecent assault, sexual assault – Guilty plea – Sentence 3 years and 10 months’ imprisonment, non-parole period 2 years and 5 months –Automatic cancellation of visa – Prospect of deportation not raised before sentencing judge – Imprisonment more burdensome because of fear of deportation – Whether lesser sentence should be imposed – Very serious offending – Significant criminal record – Sentences very moderate – No reasonable prospect of less severe sentence being imposed – Leave to appeal refused – Guden v The Queen (2010) 28 VR 288, Allouch v The Queen [2018] VSCA 244 considered – Migration Act 1958 (Cth) s 501(3A), Criminal Procedure Act 2009 s 280.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	Vernon Da Gama & Associates
For the Respondent	Ms A S Ellis	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P
WEINBERG JA:

The applicant pleaded guilty in the County Court at Melbourne to a series of charges contained in two separate indictments. In summary, these charges and the sentences imposed upon them were as follows:

Charge No

Offence

Maximum

Sentence

Cumulation

Indictment H10940177

1.
Robbery

[s 75 CrimesAct 1958]
15 years 1 year and 9 months Base

2.
Common Assault

[s 31 CrimesAct 1958]
5 years 6 months 3 months

Total Effective Sentence: 2 years’ imprisonment with 10 months to be served cumulatively upon the sentences passed on Indictment G13559482.1

Indictment G13559482.1

1.
Indecent Assault

[s 39 CrimesAct 1958 as at 16 June 2014]
10 years 1 year and 8 months Base

2.
Sexual Assault

[s 40 CrimesAct 1958 as at 24 March 2016]
10 years 1 year and 8 months 10 months

3.
Common Assault

[s 31 CrimesAct 1958]
5 years 1 year 6 months

Total Effective Sentence: 3 years’ imprisonment.

Total Effective Sentence:

3 years and 10 months

Non-Parole Period:

2 years and 5 months

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

528 days

S6AAA Statement: 8 years with a non-parole period of 4 years

Other relevant orders: Compensation order for $6,000, Sex Offender Registration for 8 years

Background Facts

Charge No	Offence	Maximum	Sentence	Cumulation
Indictment H10940177
1.	Robbery [s 75 CrimesAct 1958]	15 years	1 year and 9 months	Base
2.	Common Assault [s 31 CrimesAct 1958]	5 years	6 months	3 months
Total Effective Sentence: 2 years’ imprisonment with 10 months to be served cumulatively upon the sentences passed on Indictment G13559482.1
Indictment G13559482.1
1.	Indecent Assault [s 39 CrimesAct 1958 as at 16 June 2014]	10 years	1 year and 8 months	Base
2.	Sexual Assault [s 40 CrimesAct 1958 as at 24 March 2016]	10 years	1 year and 8 months	10 months
3.	Common Assault [s 31 CrimesAct 1958]	5 years	1 year	6 months
Total Effective Sentence: 3 years’ imprisonment.
Total Effective Sentence:	3 years and 10 months
Non-Parole Period:	2 years and 5 months
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:	528 days
S6AAA Statement: 8 years with a non-parole period of 4 years
Other relevant orders: Compensation order for $6,000, Sex Offender Registration for 8 years

As can be seen from the table set out above, in relation to Indictment H10940177, the applicant pleaded guilty on 13 April 2018 to one charge of robbery and one charge of common assault. As regards Indictment G13559482.1, he pleaded guilty on 18 July 2018 to one charge of indecent assault, one charge of sexual assault, and one charge of common…

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 Magedi v The Queen

Details

AGLC: Magedi v The Queen [2019] VSCA 102
Case: [2019] VSCA 102
Decision Date: 13 May 2019

CaseChat Overview and Summary

The appellant, Magedi, appealed against his sentence after being found guilty of multiple offences including robbery, common assault, indecent assault, and sexual assault. The trial judge had sentenced him to three years and ten months' imprisonment, with a non-parole period of two years and five months. The appeal raised the issue of whether the sentence should be reconsidered due to the prospect of deportation following his imprisonment. The appellant contended that the prospect of deportation was not considered by the sentencing judge, which made his imprisonment more burdensome. He argued that a lesser sentence should be imposed due to this additional burden.

The court was required to determine whether the prospect of deportation, not considered at sentencing, warranted a reduction in the appellant's sentence. The court noted the appellant's significant criminal record and the seriousness of the offences. It considered the principle that a sentence should not be altered due to a change in personal circumstances unless it is highly likely that a lesser sentence would have been imposed if the change had been known. The court concluded that there was no reasonable prospect of a lesser sentence being imposed if the prospect of deportation had been considered.

The Court of Appeal held that the appellant's argument did not meet the threshold for leave to appeal as set out in the relevant statutes. The very serious nature of the offending and the appellant's significant criminal record meant that the sentences imposed were very moderate. The prospect of deportation did not warrant a reduction in sentence as there was no reasonable prospect of a lesser sentence being imposed had it been considered at the time. The appeal was therefore refused. The court referred to previous cases, Guden v The Queen and Allouch v The Queen, in reaching its decision.

No further orders were made by the Court of Appeal. The appellant's appeal against his sentence was dismissed, and the original sentence stood. The Court of Appeal determined that the sentences were appropriate given the circumstances and the appellant's criminal history.

Orders