Mifsud v The Queen - [2014] VSCA 160

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0021

AARON MIFSUD

THE QUEEN

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ELECTION TO HAVE AN APPLICATION FOR LEAVE TO APPEAL DETERMINED BY THE COURT OF APPEAL
PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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JUDGES:	REDLICH and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 July 2014
DATE OF JUDGMENT:	24 July 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 160
JUDGMENT APPEALED FROM:	DPP v Hubczak & Ors (Unreported, County Court of Victoria, Judge Meredith, 18 December 2013)

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CRIMINAL LAW – Election to renew application for leave to appeal –Applicant, by reference to reasons of single judge, must demonstrate error if conclusion left to stand – Sentence – Applicant convicted of one charge each of intentionally cause injury, common assault and theft – Total effective sentence 23 months’ imprisonment wholly suspended for 24 months – Whether sentence is manifestly excessive – Application for leave to appeal is refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R F Edney	Robert Stary Lawyers
For the Crown	Mr T Gyorffy QC with Mr J B B Lewis	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:

I will ask Priest JA to deliver the first judgment.

PRIEST JA:

Following a trial in the County Court, the applicant was convicted by a jury of one charge of intentionally causing injury (charge 4), one charge of common assault (charge 3) and one charge of theft (charge 6). On 18 December 2013 he was sentenced to be imprisoned for 18 months on charge 4, 10 months on charge 3 and three (3) months on charge 6. Four months of the sentence on charge 3, and one month of the sentence on charge 6, were ordered to be served cumulatively with the sentence on charge 4, resulting in a total effective sentence of 23 months’ imprisonment which was suspended for a period of 24 months.

The applicant sought leave to appeal against the sentence on the ground that the individual sentences and total effective sentence were manifestly excessive and outside the range of those reasonably open having regard to the circumstances of the offence and those of the applicant.

On 24 April 2014, Nettle JA refused the application for leave.

Pursuant to s 315(2) of the Criminal Procedure Act 2009, the applicant has elected to renew his application.

For the reasons that follow I would refuse the application.

Background

In August and September 2012, the applicant’s co-offenders, Jamie Semmens and Crystal Hubczak, were respectively his friend and his de facto partner. The victims of the offences, Andrew Finlay and Rikki-Dean Smallacombe, resided together in Dawson Street, Tullamarine, and were known to the applicant, Semmens and Hubczak.

Hubczak had gone to the victims’ premises on Friday 31 August 2012. Her purse, containing $400, went missing during that evening, and the applicant came to believe it had been stolen by one or other of the victims (or someone known to them).

On Sunday 2 September 2012, the applicant…

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 Mifsud v The Queen

Details

AGLC: Mifsud v The Queen [2014] VSCA 160
Case: [2014] VSCA 160
Decision Date: 24 July 2014

CaseChat Overview and Summary

The applicant, Mifsud, appealed against the refusal of the single judge of the Court of Appeal to grant leave to appeal against his conviction and sentence. Mifsud had been convicted of one count of intentionally causing injury, one count of common assault and one count of theft. The sentence imposed was 23 months’ imprisonment wholly suspended for 24 months. The applicant sought to renew his application for leave to appeal against the conviction and sentence.

The legal issues before the court were whether the applicant had demonstrated an error in the single judge’s reasons that warranted the renewal of the application for leave to appeal and whether the sentence was manifestly excessive. The court noted that the applicant, in seeking to renew his application for leave to appeal, had to demonstrate an error in the reasons of the single judge that was so significant that it should lead to a different conclusion. The court also considered whether the sentence was manifestly excessive.

The court found that the applicant had not demonstrated an error in the reasons of the single judge that warranted the renewal of the application for leave to appeal. The court noted that the applicant had not identified any error in law or any material error of fact that would lead to a different conclusion. The court also found that the sentence was not manifestly excessive. The court noted that the sentence was within the range of sentences that could be imposed for the offences and that the sentence reflected the seriousness of the offences and the need for deterrence and denunciation.

The application for leave to appeal was refused.

Orders