Seualuga v The King - [2024] VSCA 7

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0195

VINCENT SEUALUGA	Applicant
v
THE KING	Respondent

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JUDGES:	Walker and Macaulay JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	31 January 2024
DATE OF JUDGMENT:	20 February 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 7
JUDGMENT APPEALED FROM:	[2023] VCC 1853 (Judge Carmody)

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CRIMINAL LAW – Appeal – Sentence – Charges relating to two distinct episodes of offending – Serious offending – Whether sentence manifestly excessive – Youthful offender – Where offender assessed as unsuitable for Youth Justice Centre order – Where offender not previously incarcerated – Plea of guilty during the COVID-19 pandemic – Application for leave to appeal granted – Appeal allowed.

R v Mills [1998] 4 VR 235, Worboyesv The Queen [2021] VSCA 169 followed. Azzopardi v The Queen (2011) 35 VR 43 discussed.

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Counsel
Applicant:		Mr J O’Connor
Respondent:		Ms J Warren
Solicitors
Applicant:	Emma Turnbull Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

WALKER JA
MACAULAY JA:

The applicant pleaded guilty in the County Court to 11 serious offences, namely: burglary, criminal damage (three counts), attempted aggravated burglary (two counts), aggravated burglary, theft (two counts) and armed robbery (two counts). The offences were committed over a period of three days, when the applicant was 20 years of age. He was sentenced in the County Court on 26 October 2022 to a total effective sentence of 4 years and 7 months’ imprisonment, with a non-parole period of 3 years.
The details of the applicant’s sentence were as follows:

Charge on Indictment

Offence

Max Penalty

Sentence

Cumulation

1 Burglary[1] 10 years 1 years 2 months

2 Criminal damage[2] 10 years 9 months 1 month

3 Attempted aggravated burglary[3] 20 years 3 years Base

4 Criminal damage[4] 10 years 9 months Nil

5 Aggravated burglary[5] 25 years 2 years 3 months

6 Theft[6] 10 years 1 year 1 months

7 Armed robbery[7] 25 years 2 years 3 months

8 Theft[8] 5 years 1 year 1 month

9 Attempted aggravated burglary[9] 20 years 2 years 3 months

10 Criminal damage[10] 10 years 9 months 2 months

11 Armed robbery[11] 25 years 2 years 3 months

Related Summary Offences

3 Commit indictable offence while on bail 30 penalty units or 3 months 1 month Nil

4 Contravene a conduct condition of bail 30 penalty units or 3 months 1 month Nil

7 Commit indictable offence while on bail 30 penalty units or 3 months 1 month Nil

11 Commit indictable offence while on bail 30 penalty units or 3 months 1 month Nil

16 Commit indictable offence while on bail 30 penalty units or 3 months 1 month Nil

20 Commit indictable offence while on bail 30 penalty units or 3 months 1 month Nil

23 Commit indictable offence while on bail 30 penalty units or 3 months 1 month Nil

Total Effective Sentence: 4 years 7 months’ imprisonment

Non-Parole Period: 3 years

Pre-sentence Detention Declared: 195 days

Section 6AAA Statement:
Total Effective Sentence…

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 Seualuga v The King

Details

AGLC: Seualuga v The King [2024] VSCA 7
Case: [2024] VSCA 7
Decision Date: 20 February 2024

CaseChat Overview and Summary

In Seualuga v The King, the appellant appealed against his sentence for charges related to two separate incidents of offending. The court was required to determine if the sentence imposed was manifestly excessive, considering the appellant's age, lack of prior incarceration, and the plea of guilty entered during the COVID-19 pandemic. The appellant, deemed unsuitable for a Youth Justice Centre order, presented arguments that the sentence was overly harsh. The court's task was to assess these arguments against the principles of sentencing, including the seriousness of the crimes and the need for deterrence and rehabilitation.

The legal issues revolved around the appropriateness of the sentence given the appellant's circumstances and the broader context of the pandemic. The court had to weigh the seriousness of the offences against the appellant's personal circumstances, including his youth and the impact of the pandemic. It also needed to consider the precedents set by cases such as R v Mills, Worboyes v The Queen, and Azzopardi v The Queen, which provide guidance on sentencing for similar offences. The court was tasked with ensuring the sentence was proportionate and just.

In rendering its decision, the court found that the sentence imposed was manifestly excessive. The court recognised the appellant's youth, the absence of prior criminal history, and the unique context of the plea during the pandemic. It concluded that the sentence did not adequately consider the appellant's personal circumstances and the need for rehabilitation. The court allowed the appeal, acknowledging that a more proportionate sentence was warranted. The court ordered a re-sentencing hearing to ensure the new sentence appropriately reflected the appellant's circumstances and the principles of criminal justice.

Orders