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Njovu v The King

Njovu v The King

Case [2025] VSCA 85 28 April 2025

Appeal

Sentencing

Criminal Liability

Attempt to Pervert the Course of Justice

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0206

MARVIN NJOVU	Applicant
v
THE KING	Respondent

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JUDGE:	TAYLOR JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	28 April 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 85
JUDGMENT APPEALED FROM:	[2024] VCC 1574 (Judge Maidment)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Appeal – Sentence – Criminal damage, intentionally cause injury, attempt to pervert the course of justice and persistent contravention of a family violence safety notice – All offending occurred within the context of family violence – Whether term of imprisonment with non-parole period manifestly excessive – Whether time served with Community Correction Order the only available sentencing option open – Leave to appeal refused.

Boulton v The Queen (2014) 46 VR 308; DPP v Reynolds (a pseudonym) (2022) 71 VR 366, referred to.

Skeates (a Pseudonym) v The King [2023] VSCA 226, applied.

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Counsel on the papers
Applicant:		Mr E Daniel (solicitor)
Respondent:		Ms A French
Solicitors
Applicant:	Daniel Legal Group
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TAYLOR JA:

On 2 May 2024 the applicant pleaded guilty to charges of criminal damage, intentionally cause injury, attempt to pervert the course of justice and persistent contravention of family violence safety notice. On 21 August 2024 the applicant pleaded guilty to the summary offence of unlawful assault. On 8 October 2024 the applicant was sentenced in relation to all charges as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Criminal damage (intent damage/destroy)[1]	10 years	2 months	Concurrent
2	Intentionally causing injury[2]	10 years	15 months	5 months
3	Attempt to pervert the course of justice[3]	25 years	2 years	Base
4	Persistent contravention of family violence safety notice[4]	5 years or 600 penalty units	14 months	4 months
Related Summary Offences
1	Unlawful assault[5]	15 penalty units or 3 months	1 month	Concurrent
Total Effective Sentence:		2 years 9 months
Non-Parole Period:		1 year 10 months
Pre-sentence Detention Declared:		154 days
Section 6AAA Statement:		Total Effective Sentence 3 years 10 months Non Parole-Period 2 years 7 months

[1]Contrary to s 197(1) of the Crimes Act 1958.

[2]Contrary to s 18 of the Crimes Act 1958.

[3]Contrary to Common Law.

[4]Contrary to s 125A(1) of the Family Violence Protection Act 2008.

[5]Contrary to Common Law.

The applicant now seeks leave to appeal against his sentence.
The proposed ground of appeal against sentence is:
The individual sentences for charges 2, 3 and 4, the total effective sentence, the non-parole period imposed, and the orders for cumulation are manifestly excessive and offend the principle of parsimony in view of:
(a) the appellant's (sic) lack of alleged prior criminal history,
(b)the appellant's (sic) remorse which is reflected in the plea of guilty at the earliest opportunity and his reported active participation in the Men's Behaviour…

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 Njovu v The King

Details

AGLC: Njovu v The King [2025] VSCA 85
Case: [2025] VSCA 85
Decision Date: 28 April 2025

CaseChat Overview and Summary

The applicant, Njovu, sought leave to appeal against his sentence imposed by a single judge for various offences including criminal damage, intentionally causing injury, attempting to pervert the course of justice, and persistent contravention of a family violence safety notice. These offences occurred within the context of family violence. The decision on whether to grant leave to appeal was made under section 315 of the Criminal Procedure Act 2009. The central legal issues before the court were whether the term of imprisonment with a non-parole period was manifestly excessive and whether time served with a Community Correction Order was the only available sentencing option.

The court considered the nature and circumstances of the offences, the applicant's criminal history, and the need to balance the interests of justice with the principles of deterrence and denunciation. It was noted that the applicant had a history of domestic violence, which had escalated to the point where the safety of others was threatened. The court emphasised the seriousness of the offences, particularly the persistent contravention of a family violence safety notice, which demonstrated a blatant disregard for the law and the safety of others. The court concluded that the sentence imposed was appropriate given the severity of the offending and the need to protect the community.

In dismissing the application for leave to appeal, the court found that the sentence was not manifestly excessive and that other sentencing options, such as imprisonment with a non-parole period, were suitable given the circumstances. The court held that the term of imprisonment with a non-parole period was justified by the gravity of the offences and the need to deter the applicant and others from engaging in similar conduct. Consequently, the application for leave to appeal was refused.

Orders