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Judgment summary - DPP (Cth) v Kiza Mordacai Masange and Gilbert Kachunga [2017] VSCA 204

The Court of Appeal today allowed an appeal by the Commonwealth Director of Public Prosecutions (‘CDPP’) against the sentence imposed on Kiza Masange. In an exercise of the Court’s residual discretion, the Court dismissed a related appeal against the sentence imposed on Gilbert Kachunga.

Masange was charged with a number of drug-related offences including a rolled up charge of importing a commercial quantity (‘CQ’) of a border controlled drug (methamphetamine and cocaine). This involved 10 importations, primarily of methamphetamine (amounting to 3.2 times a CQ with an estimated retail value of $2.025 – $2.7 million). On this charge, he was initially sentenced to seven years’ imprisonment.

Kachunga was also charged with drug-related offences including a charge of attempted possession of a marketable quantity of methamphetamine, amounting to two-thirds of the CQ, and one charge of CQ possession of the same drug (amounting to 3.73 times a CQ with an estimated retail value of $2.1 – $2.8 million). He was initially sentenced to two years’ imprisonment and four years and six months’ imprisonment respectively.

After reviewing comparable cases, the Court unanimously concluded that both sentences were not reasonably open in all the circumstances and, consequently, were manifestly inadequate. 

The Court considered whether it ought to exercise its residual discretion to dismiss the Director’s appeal. Such a discretion exists where the Director has failed to assist the court to avoid appealable error. The respondents contended that the prosecutor failed to take issue with critical defence submissions and had therefore contributed to the sentencing error. 

The Court was critical of the level of assistance provided to the sentencing judge but, by majority (President Maxwell and Justice Redlich), declined to exercise its residual discretion on that basis. Their Honours did not consider that the defence submission required a response from the prosecutor and that the prosecutor’s silence could not have been interpreted as a concession. Conversely, Justice Beale would have exercised the Court’s residual discretion, declining to interfere on the basis of inadequate assistance having been given to the sentencing judge in relation to current sentencing practices and a failure to take issue with critical defence submissions.

A further factor relevant to the exercise of residual discretion was identified in the case of Kachunga. He had been released on parole prior to the delivery of judgment and had taken significant steps towards his rehabilitation in the community. President Maxwell and Justice Redlich agreed that in the circumstances returning the applicant to custody would work a serious injustice and that, consequently, this was a proper case for the exercise of the residual discretion to dismiss the appeal.

Masange was resentenced to a total effective sentence of nine years and six months’ imprisonment with a non-parole period of six years. Had it not been for the constraint of parity, which arose because of the exercise of residual discretion in respect of the Kachunga appeal, President Maxwell and Justice Redlich would have resentenced Masange to a total effective sentence of 11 years and six months’ imprisonment, with a non-parole period of seven years.


NOTE:  This summary is necessarily incomplete. It is not intended as a substitute for the Court’s reasons or to be used in any later consideration of the Court’s reasons. The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment.

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Author: Supreme Court of Victoria
Publisher: Supreme Court of Victoria
Date of Publication: August 2017
Copyright: Supreme Court of Victoria, 2017


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