SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0218
| TALA JOSEPH AUGA MATAMATA | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KYROU and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 20 August 2021 |
| DATE OF JUDGMENT: | 9 September 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 253 |
| JUDGMENT APPEALED FROM: | [2020] VCC 1538 (Judge McInerney) |
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CRIMINAL LAW – Appeal – Sentence – 7 charges of theft – 7 charges of obtaining financial advantage by deception – Total effective sentence 12 months’ imprisonment and 2 year community correction order – Risk of deportation resulting from sentence 12 months’ imprisonment or greater – Whether judge erred in not having regard to risk of losing opportunity to settle permanently in Australia – Whether sentence manifestly excessive – Effect of sentence to undermine rehabilitative purpose – Small numerical difference having fundamental significance – Appeal allowed – Applicant resentenced to 10 months’ imprisonment with 2 year community correction order – Guden v The Queen (2010) 28 VR 288 considered.
PRACTICE AND PROCEDURE – Application for leave to appeal against sentence on two grounds – Refused by single judge – Election to renew application – Whether abuse of process to seek to replace first ground with new ground and to substitute new particulars in support of second ground – No abuse of process – Leave to amend application for leave to appeal granted – Criminal Procedure Act 2009 s 315(2).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Mence | Markotich Lawyers |
| For the Respondent | Ms D I Piekusis QC | Ms A Hogan, Solicitor for Public Prosecutions |
KYROU JA
McLEISH JA:
Introduction and summary
On 23 May 2019, the applicant pleaded guilty to the charges set out in the table below. On 24 September 2020, he was sentenced by a County Court judge to a total effective sentence of 12 months’ imprisonment and a 2 year community correction order (‘CCO’), as particularised in that table:[1]
[1]DPP v Matamata [2020] VCC 1538 (‘Sentencing remarks’).
Charge Offence Maximum Sentence Cumulation 1 Theft [Crimes Act 1958 s 74] 10 years 3 months Nil 2 Theft 10 years 4 months Nil 3 Theft 10 years 6 months 1 month 4 Theft 10 years 6 months 1 month 5 Theft 10 years 6 months Nil 6 Theft 10 years 6 months Nil 7 Theft 10 years 6 months Nil 8 Obtaining financial advantage by deception [Crimes Act s 82] 10 years 6 months Nil 9 Obtaining financial advantage by deception 10 years 6 months Nil 10 Obtaining financial advantage by deception 10 years 9 months Base 11 Obtaining financial advantage by deception 10 years 4 months Nil 12 Obtaining financial advantage by deception 10 years 6 months 1 month 13 Obtaining financial advantage by deception 10 years 3 months Nil 14 Obtaining financial advantage by deception 10 years 4 months Nil Total effective sentence: 12 months’ imprisonment Pre-sentence detention declaration: Nil Section 6AAA statement: 2 years and 6 months’ imprisonment with a non-parole period of 1 year…
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- AGLC
- Matamata v The Queen [2021] VSCA 253
- Case
- [2021] VSCA 253
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the trial judge had erred in not considering the risk of deportation and whether the sentence was manifestly excessive. The court examined whether the small numerical difference between 11 months and 12 months had fundamental significance in this context. The court also considered the effect of the sentence on the rehabilitative purpose of sentencing and whether the sentence was disproportionate to the offending.
In allowing the appeal, the court found that the trial judge had indeed erred in not having regard to the risk of deportation, which had fundamental significance in this case. The court held that the sentence was manifestly excessive and undermined the rehabilitative purpose of sentencing. The court also noted that Guden v The Queen was relevant to the appeal. Consequently, the appeal was allowed, and the applicant was resentenced to 10 months’ imprisonment with a 2 year community correction order.
The court also considered whether it was an abuse of process for Matamata to seek to replace the first ground of appeal with a new ground and to substitute new particulars in support of the second ground. The court found that there was no abuse of process and granted leave to amend the application for leave to appeal under the Criminal Procedure Act 2009 s 315(2).
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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