Tewaka v The King - [2022] VSCA 275

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0153

TEHIRA TEWAKA	Applicant
v
THE KING	Respondent

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JUDGE:	BEACH and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 December 2022
DATE OF JUDGMENT:	12 December 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 275
JUDGMENT APPEALED FROM:	[2021] VCC 1477 (Judge Maidment)

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CRIMINAL LAW – Sentence – Application for extension of time within which to seek leave to appeal against sentence – Carjacking, possessing drug of dependence and driving in a manner dangerous – TES of 3 years and 9 months, with NPP of 2 years and 6 months – Whether judge erred in not accepting opinion of medico-legal psychologist – Inadequacy of expert’s report – Complaints about judge’s failure to accept expert’s opinion not reasonably arguable – Manifest excess – Not reasonably arguable that sentence manifestly excessive – Futile to grant extension of time – Application for extension of time refused.

R v Verdins (2007) 16 VR 269; DPP v O’Neill (2015) 47 VR 395; Brown v The Queen (2020) 62 VR 491 referred to.

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Counsel
Applicant:		Mr P Kounnas
Respondent:		Mr P Bourke KC
Solicitors
Applicant:	Giorgianni & Liang Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
TAYLOR JA:

On 17 September 2021, the applicant pleaded guilty in the County Court to one charge of carjacking,[1] one charge of possessing a drug of dependence (methylamphetamine)[2] and one related summary offence of driving a motor vehicle in a manner dangerous.[3] On 1 October 2021, he was sentenced as follows:
[1]Contrary to s 79 of the Crimes Act 1958.
[2]Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981.
[3]Contrary to s 64(1) of the Road Safety Act 1986.

Charge

Offence

Maximum

Sentence

Cumulation

1

Carjacking

15 years

3 years and 8 months

Base

2

Possess drug of dependence

12 months

1 month

—

RSO 1

Drive in a manner dangerous

2 years

4 months

1 month

Total Effective Sentence:

3 years and 9 months

Non-Parole Period:

2 years and 6 months

Pre-Sentence Detention:

722 days

Section 6AAA Statement:

5 years and 6 months

Other relevant orders:

Driver’s licence cancelled and disqualified for 12 months, disposal order on charge 2

On 20 October 2022, the applicant filed an application for an extension of time for the filing of an application for leave to appeal against sentence. In his application for leave to appeal against sentence, dated 21 October 2022, he set out his proposed grounds of appeal as follows:
1(a) The judge erred in reaching a finding in contradiction of the expert report of Mr Ian Mackinnon without an evidentiary basis.
(b)The judge erred in rejecting the submissions that Verdins[4] principles be applied in this case.
2 The sentence was manifestly excessive.
[4]R v Verdins (2007) 16 VR 269 (‘Verdins’).
The applicant’s application for an extension of time within which to seek leave to appeal against sentence was supported by an affidavit…

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 Tewaka v The King

Details

AGLC: Tewaka v The King [2022] VSCA 275
Case: [2022] VSCA 275
Decision Date: 12 December 2022

CaseChat Overview and Summary

In the case of Tewaka v The King, the appellant, Tewaka, sought an extension of time to appeal against his sentence. The appellant was convicted of carjacking, possessing a drug of dependence, and driving in a manner dangerous. The County Court Judge sentenced him to a total effective sentence (TES) of 3 years and 9 months, with a non-parole period (NPP) of 2 years and 6 months. Tewaka sought an extension of time to appeal against his sentence, contending that the judge had erred in not accepting the opinion of a medico-legal psychologist.

The legal issues before the court were whether the judge erred in not accepting the opinion of the expert, whether the complaints about the judge's failure to accept the expert's opinion were reasonably arguable, and whether the sentence was manifestly excessive. The court had to determine if the appellant's application for an extension of time was futile and if the extension of time should be granted.

The court held that the complaints about the judge's failure to accept the expert's opinion were not reasonably arguable, as the expert's report was inadequate. The court found that it was not reasonably arguable that the sentence was manifestly excessive. The court concluded that it was futile to grant the extension of time for the appellant to seek leave to appeal, and therefore, the application for an extension of time was refused. The court referred to the cases of R v Verdins, DPP v O'Neill, and Brown v The Queen in reaching its decision.

Orders