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Makieng v The Queen

Makieng v The Queen

Case [2022] VSCA 52 5 April 2022

Sentencing

Appeal

Aggravated & Exemplary Damages

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0047

PATREES MAKIENG	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 March 2022
DATE OF JUDGMENT:	5 April 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 52
JUDGMENT APPEALED FROM:	DPP v Makieng [2020] VCC 2081 (Judge Doyle)

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CRIMINAL LAW — Sentence — Application for extension of time within which to seek leave to appeal — Aggravated home invasion and armed robbery — Youthful offender — Total effective sentence of 6 years and 4 months’ imprisonment with non-parole period of 3 years and 9 months — Home invasion a category 1 offence — Whether applicant had ‘assisted’ law enforcement — Whether substantial and compelling circumstances that are exceptional and rare justified a non-custodial sentence — Whether Youth Justice Centre order appropriate — Whether sentence manifestly excessive — Sentencing Act 1991 ss 5(2H), 10A, 10AC, 32(2C) — No satisfactory reason for delay — Appeal having no prospects of success — Extension of time refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Smallwood and Ms B Kelly	Greg Thomas Barrister & Solicitor
For the Respondent	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KYROU JA:

In the morning of Sunday, 16 February 2020, the Hamad family were inside their home in a residential street in Greensborough when, at about 7.10 am, the applicant and three co-offenders — disguised and armed — smashed their way in and subjected the family to a vicious and terrifying attack. Later that morning, the applicant was arrested by police.

Subsequently, on 27 November 2020, the applicant pleaded guilty before a judge in the County Court to aggravated home invasion[1] and armed robbery,[2] and to the related summary offence of committing an indictable offence whilst on bail.[3]
[1]Crimes Act 1958, s 77B. The maximum penalty is 25 years’ imprisonment.
[2]Crimes Act 1958, s 75A. The maximum penalty is 25 years’ imprisonment.
[3]Bail Act 1977, s 30B. The maximum penalty is 3 months’ imprisonment.

Following a plea in mitigation, on 18 December 2020 the judge sentenced the applicant to a total effective sentence of six years and four months’ imprisonment, with a non-parole period of three years and nine months, in accordance with the following table:

Charge Offence Sentence Cumulation

1 Aggravated home invasion 5 years and 2 months Base

2 Armed robbery 4 years 14 months

Related summary offence

12 Committing offence on bail Convicted and discharged

Total effective sentence 6 years and 4 months’ imprisonment

Non-parole period 3 years and 9 months

Section 6AAA statement 9 years’ imprisonment with 6 years and 2 months non-parole

Other orders Compensation

The applicant filed a notice of application for leave to appeal against sentence almost five months after the prescribed time.[4] Accordingly, the applicant has also made application for an extension of time within which to seek leave to appeal against sentence.[5] Should he be granted…

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 Makieng v The Queen

Details

AGLC: Makieng v The Queen [2022] VSCA 52
Case: [2022] VSCA 52
Decision Date: 5 April 2022

CaseChat Overview and Summary

The appellant, Makieng, applied to the Court for an extension of time to seek leave to appeal against his sentence for aggravated home invasion and armed robbery. The case was heard by the Supreme Court of Victoria. The appellant argued that the sentence of 6 years and 4 months’ imprisonment, with a non-parole period of 3 years and 9 months, was manifestly excessive and that he should have received a non-custodial sentence due to his youth and potential for rehabilitation.

The primary issue before the Court was whether the appellant had provided substantial and compelling circumstances that were exceptional and rare, to justify an extension of time to seek leave to appeal. Additionally, the Court had to consider whether the sentence was manifestly excessive and whether a Youth Justice Centre order was more appropriate. The Court also examined whether the appellant had assisted law enforcement agencies, which could be a mitigating factor in sentencing.

The Court found that the appellant had not provided a satisfactory reason for the delay in seeking an extension of time. The Court also held that the appellant had not demonstrated substantial and compelling circumstances that were exceptional and rare, and that the sentence was not manifestly excessive. The Court further found that a Youth Justice Centre order was not appropriate, given the seriousness of the offences. The Court concluded that the appeal had no prospects of success and therefore refused the application for an extension of time.

The Court dismissed the application for an extension of time and ordered that the appellant pay the costs of the application.

Orders