R v King; R v Ngyoune - [2007] VSCA 263

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 414 of 2006

THE QUEEN

JUSTIN KING

No. 146 of 2007

THE QUEEN

JAMIE LEE NGYOUNE

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JUDGES:	BUCHANAN JA and COLDREY and CAVANOUGH AJJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 November 2007
DATE OF JUDGMENT:	17 December 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 263

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R v King
Criminal law – Sentence – Appeal – Affray – Intentionally causing serious injury – Common fact situation – Cumulation of sentences not warranted – Appellant re-sentenced.

R v Ngyoune
Criminal Law – Sentence – Appeal – Affray – Intentionally causing serious injury – Common fact situation – Cumulation of sentences not warranted – Appellant re-sentenced – Riot – Theft – Burglary – Sentence for burglary manifestly excessive – Appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M A Gamble SC	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant King	Mr M J Croucher	Leanne Warren and Assocs
For the Appellant Ngyoune	Mr P F Tehan QC with Mr M J Gleeson	Michael Gleeson & Assocs Pty

BUCHANAN JA:

I agree with Coldrey AJA.

COLDREY AJA:

Introduction

On 4 December 2006 the appellant, Justin King, having pleaded guilty at an earlier date, was sentenced on one count of affray by fighting (count 2) and one count of intentionally causing serious injury (count 3). He was sentenced to a period of 2 years’ imprisonment on count 2 and 3 years’ imprisonment on count 3. One year of the sentence on count 2 was made concurrent with the sentence imposed on count 3. This resulted in a total effective sentence of 4 years. A non-parole period of 1 year and 6 months was fixed and pre-sentence detention of 9 days was declared. The relevant offences occurred on 13 May 2005. At that time the appellant was aged 19. At the time of his sentencing, he was 21 years of age. He had no prior convictions.

The appellant Jamie Ngyoune pleaded guilty to two sets of offences. The first comprised affray and intentionally causing serious injury. These offences arose out of the same incident in which the appellant King was involved. The second group of offences to which the appellant Ngyoune pleaded guilty occurred on 13 January 2007. These offences (taken in the order in which the sentencing judge dealt with them) were burglary with intent to steal, riotous assembly, and theft.

On the count of intentionally causing serious injury the appellant Ngyoune was sentenced to detention for 2 years in a youth justice centre; on the offence of affray, 1 year in a youth justice centre with 3 months of that sentence cumulative upon the initial sentence of 2 years. On the offence of burglary with intent to steal, a sentence of 1 year in a youth justice centre was imposed with a period of cumulation as to 9 months on the initial offence. On each of the offences of riotous assembly and theft, a sentence of detention for…

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.

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Details

Case: [2007] VSCA 263
Decision Date: 17 December 2007

CaseChat Overview and Summary

Two appellants, King and Ngyoune, appealed against their sentences in the County Court of Victoria, following their convictions for affray and other related offences. Both were part of a common fact situation where they participated in an affray and caused serious injury to another person. The primary legal issues before the court were whether the sentences imposed by the County Court were appropriate and, if not, what adjustments were necessary. The court had to consider the principles of sentencing, particularly whether the sentences should be cumulative and whether the sentences for other related offences were proportionate.

The court found that the original sentences did not adequately reflect the seriousness of the affray and the other related offences. The judges highlighted that while the appellants' involvement in the affray warranted punishment, the cumulative approach to sentencing was not appropriate in this instance. The court also noted that Ngyoune's sentence for burglary was manifestly excessive compared to the other offences committed. After carefully reviewing the circumstances and applicable sentencing principles, the court determined that the sentences should be reconsidered to ensure they were just and proportionate to the crimes committed.

In light of the court's findings, the sentences imposed by the County Court were set aside. The appellants were re-sentenced by the Court of Appeal. King's re-sentence focused on the affray and the intentional causing of serious injury, while Ngyoune's re-sentence addressed the affray, the riot, the theft, and the burglary. The court aimed to ensure that the sentences reflected the gravity of the offences without unnecessary cumulation. The final orders included specific directions for the re-sentencing of both appellants, ensuring their sentences were fair and proportionate to the crimes they had committed.

Orders