Mak v R - [2011] VSCA 5

COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2009 0868

DEAN EDWARD MAK	Appellant
	v
THE QUEEN	Respondent

---

JUDGES	WEINBERG JA and KING AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	14 January 2011
DATE OF JUDGMENT	20 January 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 5
JUDGMENT APPEALED FROM	R v Mak (Unreported, County Court of Victoria, Judge Pullen, 12 October 2009)

---

CRIMINAL LAW – Appeal – Sentence – Appellant pleaded guilty to one count of recklessly causing serious injury – Appellant struck victim once with fist to right cheek – Attack unprovoked – Extent of injury unclear – Sentenced to three years and six months’ imprisonment with non-parole period of two years and nine months – Offence committed while appellant on bail for other offences – Appellant sentenced while already undergoing a sentence which related to a series of other offences – Appellant to serve a total of just over four years’ imprisonment with non-parole period of, in effect, three years, three months and ten days – Principle of totality – Sentence not manifestly excessive – Non-parole period not manifestly excessive – Sentencing judge imposed non-parole period described as concurrent with earlier non-parole period – Failure by sentencing judge to ‘fix a new single non-parole period in respect of all’ sentences the appellant was to serve – Breach of s 14(1) of Sentencing Act 1991 – Appellant re-sentenced to three years’ imprisonment with non-parole period of two years – Appeal decision no point of general principle.

---

Appearances:	Counsel	Solicitors
For the Appellant	Mr D A Dann	Robert Davis Solicitor
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

KING AJA:

The appellant, Dean Edward Mak, pleaded guilty in the County Court to one count of having, on 5 October 2008, recklessly caused serious injury. The circumstances surrounding that offending were set out in a document marked ‘Exhibit A’, tendered on 30 September 2009, during the course of the plea, and in the sentencing remarks of her Honour Judge Pullen when she sentenced the appellant on 12 October 2009.

In brief compass, those circumstances were as follows. On 3 October 2008, the appellant was charged with having assaulted a woman by the name of Jaymie Bailey. Ms Bailey was the de facto partner of the complainant, Grant Penn. Mr Penn made a statement to police in support of that charge.

At about 4.00pm on 5 October 2008, Mr Penn left his home in Morwell and proceeded to the shops. At the corner of Vary Street and Symon Crescent, he encountered the appellant and his partner, Kate Dunstan, who were riding bicycles. Both the appellant and Ms Dunstan verbally abused Mr Penn, who ignored them and continued shopping. A short time later, Mr Penn left the shopping area to go home.

As Mr Penn approached the intersection of Vary Street and Savige Street, the appellant and Ms Dunstan rode towards him from behind. Thereafter, the appellant struck Mr Penn with his fist…

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 Mak v R

Details

AGLC: Mak v R [2011] VSCA 5
Case: [2011] VSCA 5
Decision Date: 20 January 2011

CaseChat Overview and Summary

The appellant, Mak, was convicted and sentenced by the County Court of Victoria to a term of imprisonment for recklessly causing serious injury. Mak appealed against his sentence on the basis that it was manifestly excessive. Mak had pleaded guilty to one count of recklessly causing serious injury by striking the victim with his fist on the right cheek. The attack was unprovoked and the extent of the injury remained unclear. The trial judge sentenced Mak to three years and six months’ imprisonment with a non-parole period of two years and nine months. Mak was already serving a sentence for a series of other offences and had been on bail for further offences at the time of the offence for which he was sentenced. Mak argued that the sentence was manifestly excessive and that the principle of totality should have been applied to reduce his overall term of imprisonment.

The court considered whether the sentence was manifestly excessive, and if the principle of totality should have been applied. The court noted that the appellant had been sentenced while already undergoing a sentence for other offences. The court concluded that the sentence was not manifestly excessive and that the principle of totality was not applicable. The court also considered whether the non-parole period was manifestly excessive. The court concluded that the non-parole period was not manifestly excessive. The court noted that the sentencing judge had imposed a non-parole period which was concurrent with the earlier non-parole period. However, the court held that the sentencing judge had breached s 14(1) of the Sentencing Act 1991 by failing to fix a new single non-parole period in respect of all the sentences the appellant was to serve. The court re-sentenced Mak to three years’ imprisonment with a non-parole period of two years.

The court dismissed Mak’s appeal against sentence. The court held that the appeal decision did not raise a point of general principle. The court did not consider it appropriate to order a reduction in the non-parole period. The court held that the original sentence was not manifestly excessive and that the principle of totality was not applicable. The court held that the appellant’s overall term of imprisonment was just over four years, with a non-parole period of, in effect, three years, three months and ten days. The court concluded that the appellant’s sentence was not manifestly excessive and that the appeal decision did not raise a point of general principle.

Orders