R v Sa

Case [2004] VSCA 182 7 October 2004

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 344 of 2003

THE QUEEN
	v.
MAFULU TAFA SA

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JUDGES:	CALLAWAY, BUCHANAN and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 September 2004
DATE OF JUDGMENT:	7 October 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 182

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Criminal law – Sentencing – Aggravated burglary – Intentionally causing serious injury – Leave to appeal granted by single judge – Developments subsequent to grant of leave – Whether leave to appeal should be rescinded – Prevalence of offence – Forgiveness by, and attitude of, victim – Total effective sentence of four years' imprisonment with non-parole period of two years not manifestly excessive – Appeal dismissed - Crimes Act 1958, ss.16, 77, 582 – Sentencing Act 1991, s.5(2)(da) and (db).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.G. Hillman, S.C.	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr P.G. Priest, Q.C. Mr M.J. Croucher	Andrew George

CALLAWAY, J.A.:

The appellant was sentenced to two years' imprisonment on one count of aggravated burglary and three-and-a-half years' imprisonment on one count of intentionally causing serious injury. A direction for cumulation resulted in a total effective sentence of four years' imprisonment, in respect of which a non-parole period of two years was fixed. Leave to appeal was granted by a single judge of appeal pursuant to s.582 of the Crimes Act 1958 on 11^th June 2004. After that date the Court decided three cases on intentionally causing serious injury,[1] which emphasized the potential gravity of the offence and the caution to be exercised with respect to sentences passed when the maximum penalty was twelve-and-a-half years' imprisonment.[2]
[1]Director of Public Prosecutions v. Zullo [2004] VSCA 153; Director of Public Prosecutions v. Lawrence [2004] VSCA 154 and R. v. Huynh [2004] VSCA 156.
[2]The penalty was increased to 20 years' imprisonment by s.60 of the Sentencingand Other Acts (Amendment) Act 1997, which came into force on 1^st September 1997.

In the light of those three decisions and the facts of the present case as disclosed in the appeal book, we listed the appeal for mention the day before it was due to be heard and informed counsel that, when it was called on for hearing, we desired to hear submissions first on the question whether leave to appeal should be rescinded.[3]
[3]As to the power of the Court of Appeal to rescind leave, see Coles Myer Ltd. v. Bowman [1996] 1 V.R. 457 at 460; Ermogenous v. Greek Orthodox Community of S.A. Inc. (2001) 209 C.L.R. 95 at 112 [46] and R. v. GAM (No. 2) [2004] VSCA 117 at [46].

We were concerned that the appeal might now have insufficient prospects of success even if one or more of the specific errors alleged were made out.[4] Mr Priest persuaded us that the appeal should proceed, which proves once again that natural justice is no idle ceremony. That is not to say that, in a different case,…

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 Sa

Details

AGLC: R v Sa [2004] VSCA 182
Case: [2004] VSCA 182
Decision Date: 7 October 2004

CaseChat Overview and Summary

The case of R v Sa involves the defendant, Sa, who was convicted of aggravated burglary with the additional element of intentionally causing serious injury. The dispute arose in the Court of Appeal, which had to determine whether the leave to appeal granted by a single judge should be rescinded in light of subsequent developments. The appeal was lodged following Sa's conviction and sentence, which was a total effective imprisonment term of four years with a non-parole period of two years. The legal issues before the court included whether the leave to appeal should be rescinded due to developments that occurred after the grant of leave, and if the sentence was manifestly excessive given the circumstances. The court needed to consider the prevalence of the offence, the forgiveness shown by the victim, and the attitude of the victim towards Sa.

In addressing these issues, the court first considered the principle that leave to appeal should be rescinded only if there were significant developments that warranted reconsideration of the original decision. It was noted that the developments in this case did not alter the fundamental aspects of the appeal. The court also examined the factors relevant to sentencing, including the prevalence of the offence and the victim's forgiveness and attitude towards Sa. The court concluded that the total effective sentence of four years with a two-year non-parole period was not manifestly excessive. The appeal was dismissed on the basis that the sentence was proportionate and appropriately reflected the seriousness of the offence and the circumstances surrounding it.

The court's decision to dismiss the appeal was grounded in the assessment that the sentence imposed was justified given the nature of the crime and the circumstances. The court took into account the victim's forgiveness and the overall impact of the offence, which influenced their determination that the sentence was not manifestly excessive. The court's final orders were to dismiss the appeal and uphold the original sentence as appropriate and proportionate to the crime committed. The decision underscores the importance of considering both legal and equitable factors in sentencing and the appellate process.

Orders