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Matamata v The Queen

Matamata v The Queen

Case [2021] VSCA 253 9 September 2021

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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…

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…

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 Matamata v The Queen

Details

AGLC: Matamata v The Queen [2021] VSCA 253
Case: [2021] VSCA 253
Decision Date: 9 September 2021

CaseChat Overview and Summary

The defendant, Matamata, was found guilty of seven charges of theft and seven charges of obtaining financial advantage by deception. He was sentenced to a total effective term of 12 months’ imprisonment and a 2 year community correction order. Matamata appealed against the sentence, arguing that the trial judge had erred by not considering the risk of deportation as a result of the 12 months’ imprisonment. He also contended that the sentence was manifestly excessive and would undermine the rehabilitative purpose of sentencing. The appeal hinged on the interpretation of the difference between a sentence of 11 months and 12 months, as the latter would result in deportation.

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