R v Kalala - [2015] VSC 713

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0104

THE QUEEN

BALENGA KALALA

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JUDGE:	WARREN CJ
WHERE HELD:	Melbourne
DATE OF HEARING:	16 November 2015
DATE OF SENTENCE:	11 December 2015
CASE MAY BE CITED AS:	R v Kalala
MEDIUM NEUTRAL CITATION:	[2015] VSC 713

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell QC	Mr J Cain, Solicitor for Public Prosecutions
For the Accused	Mr I G Crisp	Thexton Lawyers

HER HONOUR:

Introduction

Balenga Kento Kalala, you have pleaded guilty to one count of incitement to murder, in that on or about 17 February 2015, you incited Kigwasa Rusomoka Fredy to murder your de facto partner, and the mother of your children, Noela Rukundo.

The maximum sentence for incitement to murder, both in Victoria and in Burundi is life imprisonment.[1]
[1]See s 321I of the Crimes Act 1958 and art 211 of the Penal Code of Burundi.

You are 39 years old. You came to Australia as a refugee. You are well educated, have maintained steady employment and established yourself as hardworking and reliable. You have no relevant prior convictions. Yet you have perpetrated a very serious offence, against a woman whom you claimed to love.

I will begin by setting out your background, before turning to the circumstances of the offence and other matters which the law requires me to consider.

Background

You were born in the Democratic Republic of the Congo, in an area close to the Burundian border. You are a member of the Bafuleru tribe. Your parents were farmers and still live in the Congo. Your siblings, two brothers and three sisters, are all in refugee camps in either Botswana or Burundi. Apparently, you regularly provide financial assistance to your relatives back in Africa.

You received a good education. After completing the Congolese equivalent of year 12 you undertook further studies, in French, and obtained a Diploma of Commerce and Management. However, you never worked in this field.

At the age of 24 or thereabouts you married a girl from your village, and together you had a son. About a year later a rebel group came through your village. The rebels brutally killed your wife and young son, and tried to recruit you into their army. Fortunately, you managed to escape. You fled to Botswana, where you spent about 12 months in a refugee camp, before coming to Australia in 2004 as a refugee.

When you arrived in Melbourne, you had some friends here but no family. You soon commenced a de facto relationship with Ms Rukundo, and together you had three children: two sons (currently aged 10 and 11) and a daughter (aged 5). Ms Rukundo also has five children from previous relationships, and you all lived together. In your view, it was a fairly happy relationship; you and Ms Rukundo had arguments but continued to live together. In 2011 you travelled together to your respective home countries, in your view, again…

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 R v Kalala

Details

AGLC: R v Kalala [2015] VSC 713
Case: [2015] VSC 713
Decision Date: 11 December 2015

CaseChat Overview and Summary

Balenga Kalala pleaded guilty to incitement to murder in the Supreme Court of Victoria. The accused incited Kigwasa Rusomoka Fredy to murder his de facto partner, Noela Rukundo, on or around 17 February 2015. The maximum penalty for incitement to murder is life imprisonment. The court considered the background of the accused, who fled the Democratic Republic of the Congo as a refugee and had no prior convictions. The court also considered the circumstances of the offence, the impact on the victim, and the gravity of the offence. The court found that the accused's offending was premeditated and motivated by unfounded jealousy, anger and a desire to punish the victim. The court also considered mitigating factors, such as the accused's early guilty plea, lack of prior convictions, and remorse.
The court sentenced the accused to a term of imprisonment of 9 years, with a non-parole period of 6 years. The court found that the accused's offending was a very grave example of incitement to murder, and that a clear message needed to be sent to the community about the unacceptability of such behaviour. The court also considered the impact of the offence on the victim, who experienced loneliness, isolation, and financial troubles, as well as suicidal thoughts and panic attacks. The court found that the sentence should be proportionate to the gravity of the crime, the impact on the victim, and the need for specific and general deterrence. The court acknowledged that the accused had a difficult upbringing and was of previous good character, but found that his level of remorse was tempered by his initial denial of wrongdoing and attempts to shift the blame for his actions.

Orders