| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0227 |
| SAAFAAVA TUFUE | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | BEACH and MACAULAY JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 February 2024 |
| DATE OF JUDGMENT: | 6 March 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 22 |
| JUDGMENT APPEALED FROM: | [2023] VCC 2080 (Judge McInerney) |
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CRIMINAL LAW – Sentence – Application for leave to appeal – Appellant guilty of attempted aggravated burglary, intentionally damage property, recklessly cause injury, reckless conduct endanger serious injury and related summary offences – Aggregate sentence of 572 days’ imprisonment and 2-year community correction order – Renzella time of 450 days – Whether error in imposition of sentence that would lead to deportation – Whether sentence manifestly excessive – Error made in approach to considering risk of deportation – Application for leave to appeal granted – Appeal allowed – Appellant re-sentenced to aggregate sentence of 16 months’ imprisonment and 2-year community correction order.
Migration Act 1958 (Cth), ss 500(1)(ba), 501(3A)(a)(i), (6)(a), (7)(c), 501CA(4).
DPP v Ty [No 2] (2009) 24 VR 705; Guden v The Queen (2010) 28 VR 288 followed. R v Renzella [1997] 2 VR 88 discussed.
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| Counsel | |||
| Applicant: | Mr RW Backwell | ||
| Respondent: | Ms DI Piekusis KC | ||
Solicitors | |||
| Applicant: | McNally & Gleeson & Co | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
BEACH JA
MACAULAY JA:
On 30 September 2022, following a committal hearing on 5 September 2022, the applicant pleaded guilty to four indictable offences and six related summary offences, as set out below. Following a plea hearing before Judge McInerney in the County Court, the applicant was convicted and, on 10 November 2023, sentenced as follows:[1]
[1]DPP v Tufue [2023] VCC 2080 (Judge McInerney) (‘Reasons’).
Charge Offence Maximum Sentence Cumulation Indictment No. LI2423827 1 Attempted aggravated burglary[2] 20 years’ imprisonment Aggregate 572 days’ imprisonment and 2-year community correction order - 2 Intentionally damage property[3] 10 years’ imprisonment - 3 Recklessly cause injury[4] 5 years’ imprisonment - 4 Reckless conduct endanger serious injury[5] 5 years’ imprisonment - Related Summary Offences Summary Charge 7 Non-prohibited person possess imitation firearm without exemption or approval[6] Fine of up to 240 penalty units or 2 years’ imprisonment 1 month imprisonment - Summary Charge 9 Possess cartridge ammunition without licence or permit[7] Fine of up to 40 penalty units Fined $826.10 - Summary Charge 10 Commit indictable offence whilst on bail[8] Fine of up to 30 penalty units or 3 months’ imprisonment 1 month imprisonment - Summary Charge 12 Fail to produce licence on request[9] Fine of up to 5 penalty units Fined $165.22 - Summary Charge 13 Drive while disqualified[10] Fine of up to 240 penalty units or 2 years’ imprisonment 1 month imprisonment - Summary Charge 17 Fail to answer bail[11] 2 years’ imprisonment 1 month imprisonment - Total Effective Sentence: Aggregate 572 days’ imprisonment and 2-year community correction order Pre-Sentence Detention: 392 days Section 6AAA Statement: 2 years’ imprisonment Other relevant orders: Forfeiture and Disposal Orders [2]Contrary to ss 77 and 321M of…
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- AGLC
- Tufue v The King [2024] VSCA 22
- Case
- [2024] VSCA 22
- Decision Date
CaseChat Overview and Summary
The court was required to examine the trial judge's approach to sentencing, particularly in relation to the consideration of the risk of deportation. The appeal hinged on whether the trial judge had made an error in his approach to the sentencing process that could result in the appellant's deportation. Additionally, the court had to assess if the sentence imposed was manifestly excessive given the nature and circumstances of the offences. The legal framework for these considerations was provided by sections of the Migration Act 1958 and relevant case law, including DPP v Ty [No 2], Guden v The Queen, and R v Renzella.
The Court of Appeal found that the trial judge had erred in the approach to considering the risk of deportation, which constituted a significant error in the sentencing process. The court held that the trial judge had failed to properly weigh the risk of deportation as a factor in determining the sentence. Furthermore, the court concluded that the sentence was manifestly excessive. As a result, the application for leave to appeal was granted, and the appeal was allowed. The appellant was re-sentenced to an aggregate sentence of 16 months' imprisonment and a 2-year community correction order. This re-sentencing was intended to rectify the errors identified and to ensure the sentence was appropriate given the circumstances of the case.
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