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Tufue v The King

Tufue v The King

Case [2024] VSCA 22 6 March 2024

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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…

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 Tufue v The King

Details

AGLC: Tufue v The King [2024] VSCA 22
Case: [2024] VSCA 22
Decision Date: 6 March 2024

CaseChat Overview and Summary

The appellant, Tufue, was found guilty of multiple criminal offences, including attempted aggravated burglary, damaging property, recklessly causing injury, and reckless conduct endangering serious injury, as well as related summary offences. Following his conviction, Tufue was sentenced to an aggregate term of 572 days' imprisonment and a 2-year community correction order. The appellant applied for leave to appeal against his sentence, arguing that it was manifestly excessive and that an error was made in the consideration of the risk of deportation under the Migration Act 1958. The appeal was heard in the Victorian Court of Appeal, which had to determine whether the trial judge had erred in the imposition of the sentence, leading to the risk of deportation, and whether the sentence was manifestly excessive.

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.

Orders