JUDGES:	REDLICH and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 September 2014
DATE OF JUDGMENT:	22 September 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 219
JUDGMENT APPEALED FROM:	DPP v Mogoai & Ors (Unreported, County Court of Victoria, Judge Cotterell, 15 April 2014)

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CRIMINAL LAW – Sentence – Appeal – Recklessly causing serious injury and affray – Unprovoked attack – Youthful offenders – Delay – Good prospects of rehabilitation – Total effective sentence of 2 years and 6 months’ imprisonment with non-parole period of 12 months not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Appellant Mogoai	Mr M R Page	Greg Thomas & Associates
For the Appellant Alexander	Mr D D Gurvich	Turnbull Lawyers
For the Crown	Mr J B B Lewis	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA
PRIEST JA:

Introduction

Daniel Mogoai is now aged 23 years, having been born on 5 December 1990. James Alexander is also aged 23 years, having been born on 1 November 1990. Both were 21 years of age when the instant offences were committed.

On 15 April 2014 each was sentenced to be imprisoned for 29 months on a charge of recklessly causing serious injury (charge 1), and for nine (9) months on a charge of affray (charge 4). One month of the sentence on charge 4 was ordered to be served cumulatively on the sentence on charge 1, resulting in a total effective sentence of 30 months’ imprisonment, upon which a non-parole period of 12 months’ imprisonment was fixed.

Pursuant to leave granted by a judge of this Court, each has appealed against sentence on a ground which asserts that the sentences are manifestly excessive. (A second common ground, that the sentencing judge erred in finding that the assault by the appellants was unprovoked, was abandoned during the hearing of the appeal.)

For the reasons that follow, we would dismiss each appeal.

Factual background

During the early hours of 25 April 2012, the appellants, together with the appellant Mogoai’s younger brother, Blake Mogoai, and two young females, Rhiannon Lee Hocking and Almaz Rios, were involved in an incident on Chapel Street, South Yarra, in which Djordje Dimitrijevic and Darko Jakovijevic were

attacked. The principal victim, Djordje Dimitrijevic, suffered serious facial injuries as a result.

It seems that Mr Jakovijevic, who had been drinking nearby with friends, had gone into a convenience store on Chapel Street to buy cigarettes and a bottle of water. While at the convenience store, there was an altercation between Mr Jakovijevic and Hocking and Rios, both Hocking and Rios claiming that he had hit them.

After the altercation, Mr Jakovijevic continued to his friend’s car, where the Mr Dimitrijevic was waiting. Hocking and Rios began shouting abuse at both Mr Jakovijevic and Mr Dimitrijevic, and Hocking telephoned the appellant Alexander, as…

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 Mogoai v The Queen

Details

AGLC: Mogoai v The Queen [2014] VSCA 219
Case: [2014] VSCA 219
Decision Date: 22 September 2014

CaseChat Overview and Summary

In the case of Mogoai v The Queen, the appellants, Mogoai and his co-offenders, were convicted for their involvement in an unprovoked attack resulting in serious injury to the victim. The primary legal issue for the court was to determine whether the total effective sentence of two years and six months' imprisonment, with a non-parole period of 12 months, was manifestly excessive given the circumstances of the case, the age of the offenders, and their prospects of rehabilitation. The court also had to consider the impact of the delay in bringing the case to trial on the appropriate sentence.

The court carefully examined the principles of sentencing in cases of serious violent offences, particularly those involving young offenders. The court acknowledged the gravity of the attack and the serious nature of the injuries inflicted but also recognised the young age of the offenders and their potential for rehabilitation. The court noted that the offenders had pleaded guilty and there had been a significant delay in the proceedings, which impacted the overall sentence. The court ultimately concluded that the sentence, while severe, was not manifestly excessive given the totality of the circumstances, including the offenders' age and prospects for rehabilitation.

In reaching its decision, the court considered the principles of sentencing outlined in relevant case law, particularly those concerning the balance between punishment and rehabilitation for young offenders. The court also weighed the factors of the unprovoked nature of the attack and the significant delay in bringing the case to trial. The court determined that the sentence imposed, while substantial, was not so disproportionate as to be manifestly excessive. The court upheld the sentence, finding that it appropriately balanced the need for punishment and the prospects for rehabilitation.

The final orders of the court were to affirm the sentence of two years and six months' imprisonment with a non-parole period of 12 months, dismissing the appeal against sentence. The court's decision underscored the importance of considering the unique circumstances of youthful offenders and their potential for rehabilitation in the sentencing process.

Orders