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Taupati v The Queen

Taupati v The Queen

Case [2017] VSCA 106 8 May 2017

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0175

JUNIOR TAUPATI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH, SANTAMARIA and FERGUSON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 March 2017
DATE OF JUDGMENT:	8 May 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 106
JUDGMENT APPEALED FROM:	[2014] VCC 658 (Judge Hampel)

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CRIMINAL LAW – Appeal – Sentence – Affray – Recklessly cause serious injury – Offender absconded during jury deliberations – Whether waiver of right to be present and make submissions on sentence – Whether power to proceed to sentence in absence of offender should be exercised ‘sparingly’ – Mokbel v The Queen (2010) 30 VR 115 applied; R v Jones (1998) 72 SASR 281 considered – No assessment of prospects of rehabilitation or need for specific deterrence – Discretion to proceed to sentence properly exercised – Whether sentence manifestly excessive – Whether non-parole period of 78 per cent of head sentence excessive and reserved for cases where a negative finding made in relation to prospects for rehabilitation – Whether reasons for fixing particular non-parole period required – Kumova v The Queen (2012) 37 VR 538; R v Detanamo [2007] VSCA 160; Mak v The Queen [2011] VSCA 5; R v JZ (1998) 7 VR 693 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J R Cass with	Victoria Legal Aid
Mr A Malik
For the Crown	Mr C B Boyce SC with	Mr J Cain, Solicitor for
Mr M D Stanton	Public Prosecutions

REDLICH JA
SANTAMARIA JA
FERGUSON JA:

The applicant was convicted at trial of the common law offence of affray and causing serious injury recklessly contrary to s 17 of the Crimes Act 1958. His trial proceeded throughout March and into early April of 2014. On the 10^th day of April he absconded. The following day a verdict of guilty was returned by the jury. He was sentenced by the trial judge in his absence on 29 April 2014 as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Affray [common law] (s 320 Crimes Act 1958) 5 years’ imprisonment 1 year’s imprisonment 6 months

2 Cause serious injury recklessly (s 17 Crimes Act 1958) 15 years’ imprisonment 4 years’ imprisonment Base

Total Effective Sentence: 4 years and 6 months’ imprisonment

Non-Parole Period: 3 years and 6 months

Pre-sentence Detention Declared: NIL

6AAA Statement: -

Other orders: Forensic sample order.

The applicant now seeks leave to appeal his sentence on three grounds:

1. The sentencing judge erred in her decision to sentence the applicant in his absence in circumstances where she was unable to have proper regard to specific deterrence and prospects for rehabilitation and where both were relevant to the sentencing task.
2. The sentencing judge, without providing reasons, erred in setting a non-parole period that was 78 per cent of the total effective sentence. In light of the gravity of the offending, parity, and the objective prospects of rehabilitation it was more than…

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 Taupati v The Queen

Details

AGLC: Taupati v The Queen [2017] VSCA 106
Case: [2017] VSCA 106
Decision Date: 8 May 2017

CaseChat Overview and Summary

In the case of Taupati v The Queen, the appellant was convicted of participating in an affray and recklessly causing serious injury. He appealed against his sentence, arguing that the trial judge improperly proceeded with sentencing in his absence after he absconded during jury deliberations. The appeal was heard by the Victorian Court of Appeal.

The legal issues before the court included whether the appellant had waived his right to be present at and make submissions on his sentence, and if the power to proceed with sentencing in his absence should be exercised sparingly. The court considered precedents such as Mokbel v The Queen and R v Jones in addressing these issues. The court also examined whether the sentence was manifestly excessive and if the non-parole period was disproportionately long.

The court found that the appellant had indeed waived his right to be present and make submissions by absconding during the trial. The court held that the trial judge’s discretion to proceed with sentencing in the appellant's absence was properly exercised, particularly in light of the precedents considered. The court also concluded that the sentence was not manifestly excessive and that the non-parole period was appropriately set. The reasons for fixing the particular non-parole period were found to be adequately addressed by the trial judge.

The Court of Appeal dismissed the appeal, upholding the sentence imposed by the trial court. The appellant's conviction and sentence remained in place, with no alterations made to the terms of his imprisonment.

Orders