Mifsud v The Queen

[2014] VSCA 160

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0021

AARON MIFSUD

v

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:

1. I will ask Priest JA to deliver the first judgment.

PRIEST JA:

1. 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.

1. 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.

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

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

1. For the reasons that follow I would refuse the application.

Background

1. 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.

1. 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). 

1. On Sunday 2 September 2012, the applicant and Semmens went to the victims’ premises.  There was an argument over the purse.  The applicant punched Finlay once to the face (common assault, charge 3).  Semmens then punched Smallacombe to the face using knuckledusters, and the applicant put a lighted cigarette to his face (charge 4, intentionally causing injury).  The sentencing judge found that the applicant and Semmens were involved in a joint criminal enterprise with respect to these offences, and sentenced them on the basis that they were equally responsible for them.  During the incident, the applicant took a mobile telephone from Finlay and told him that it would be returned when Hubczak’s purse was returned (charge 6).  Neither victim required medical treatment, although Smallacombe said that he received bruising to his face.

1. The judge accepted that the applicant, aged 21, and Hubczak, aged 19, were in relatively straitened circumstances at the time of the offending, struggling to properly care for their young child.  A sense of grievance was engendered in the applicant due to his belief that the purse and $400 had been stolen.

Discussion

1. Counsel for the applicant contended that the sentence passed was manifestly excessive when proper regard was had to the applicant’s age (21 years at the time of commission of the offences, 22 at time of sentence);  the unchallenged psychological evidence that he was ‘cognitively and emotionally immature’;  his addiction to amphetamines and ‘ice’;  his limited prior criminal history;  his good relationship with his parents;  and his compliance with a community corrections order, imposed for an unrelated offence on 2 May 2013.  The applicant’s moral culpability was reduced, so it was argued, since he was emotionally distressed because he believed that his good friend, Finlay, had stolen $400 from his partner, in circumstances where he and his partner were in a difficult financial situation.  Further, neither victim required medical treatment.

1. In light of these matters, it was submitted that the sentences of 10 months’ imprisonment for common assault, and 18 months for intentionally causing injury, were outside the range of the exercise of sound sentencing discretion and were disproportionate to the criminality involved.  The conviction for theft, it was argued, should not have attracted a sentence of imprisonment.  Finally, it was submitted that the orders for cumulation were excessive.

1. I am unpersuaded that it is reasonably arguable that any aspect of the sentence is manifestly excessive.  In my opinion the judge would have been justified in imposing a sentence of imprisonment immediately to be served.  The applicant had a prior conviction for reckless conduct endangering serious injury, for which he was released on a CBO which he later breached, resulting in a suspended sentence. At the time of the present sentence he was also subject to a CCO, imposed for (among other offences), reckless conduct endangering serious injury.  Despite these antecedents, however, the judge took a lenient approach, and fashioned orders which allowed for the applicant to continue his incipient rehabilitation under the earlier imposed community corrections order.  At the same time, the judge imposed periods of imprisonment for the offences of violence (albeit suspended), appropriately reflecting the gravity of the offences, which were justifiably described as ‘nasty’.  I recognise that the sentence of imprisonment imposed for theft of the mobile telephone might be described as stern, but in my opinion it is not manifestly excessive when viewed as part of the overall criminal episode, and as a component of a structured sentence reflecting the totality of the applicant's criminality. 

1. Rather than the sentence being a cause for complaint, the applicant should regard himself as fortunate that the judge took such a benign approach to his offending. 

1. The application is without substance.  It should be dismissed.

REDLICH JA:

1. I agree.  I would add only this.  As recent decisions of this Court in Booysen[1] and Ayol[2] show, where an applicant renews an application for leave to appeal from a refusal of leave in which is single judge of this Court has given detailed reasons for such refusal, the applicant should, by reference to those reasons, demonstrate that there would be error if those reasons and conclusion were left to stand.

   [1]Booysen v The Queen [2014] VSCA 150.

   [2]Ayol v The Queen [2014] VSCA 151.

1. In this case Nettle JA on 29 April 2014, gave full reasons why leave should be refused.  No submission has been made which identifies any error in the reasons or the conclusion which Nettle JA reached.

1. The order of the Court is that the application for leave to appeal is refused.

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