| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0117 |
| RUSLAN ABDULLAYEV | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | KYROU JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 19 October 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 225 |
| JUDGMENT APPEALED FROM: | [2022] VCC 735 (Judge Dalziel) |
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CRIMINAL LAW – Appeal – Sentence – One charge of attempted trafficking in drug of dependence and 2 charges of possession of drug of dependence – Total effective sentence 3 years, non-parole period 2 years – Whether judge erred in making factual finding – Whether sentence manifestly excessive – Application for extension of time to file notice of application for leave to appeal – Extension of time granted – Leave to appeal refused.
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| Counsel | |||
| Applicant: | Mr J O’Connor | ||
| Respondent: | Ms J Warren | ||
Solicitors | |||
| Applicant: | Milides Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
KYROU JA:
Introduction and summary
On 10 February 2022, the applicant pleaded guilty to the charges set out in the table below and, on 13 May 2022, he was sentenced by a County Court judge as set out in that table:[1]
[1]DPP v Abdullayev [2022] VCC 735 (‘Sentencing remarks’).
Charge
Offence
Max Penalty
Sentence
Cumulation
1 Attempted trafficking in a drug of dependence [s 71AC(1) Drugs, Poisons and Controlled Substances Act 1981 (‘DPCSA’)] 15 years 3 years Base 2 Possession of a drug of dependence [s 73(1) DPCSA] 1 year 7 days — 3 Possession of a drug of dependence 1 year 7 days — Total Effective Sentence: 3 years Non-Parole Period: 2 years Section 6AAA Statement: 4 years, 6 months; Non-Parole Period 3 years
The applicant now seeks leave to appeal on the following grounds:[2]
1The learned sentencing judge erred in finding that by the time the Applicant had placed the boxes in his van, he ‘must have been aware that there was a significant quantity of drug involved’.
2The sentence imposed on charge 1 and the non-parole period are manifestly excessive.
[2]In these reasons, proposed grounds of appeal are referred to as grounds of appeal.
As the notice of application for leave to appeal was filed outside the 28 day time limit prescribed by s 279(1) of the Criminal Procedure Act 2009 (‘CPA’), the applicant also seeks an extension of time under s 313(1) of the CPA.
The delay in the present case was not excessive. Accordingly, I will grant the application for an extension of time. However, for the reasons that follow, the application for leave to appeal will be refused.
Circumstances of the offending, arrest and bail
In 2018 and 2019, police conducted an investigation into the importation of border‑controlled substances and trafficking in drugs of dependence. The individuals whose activities were ultimately the subject of the investigation included the applicant, Richard De Luca, Mathew Gray and Domenic Luzza. As part of the investigation, various individuals were the subject of lawful intercepts. Through these intercepts, the police became aware that Luzza was tracking a consignment on the…
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- AGLC
- Abdullayev v The King [2022] VSCA 225
- Case
- [2022] VSCA 225
- Decision Date
CaseChat Overview and Summary
The primary issue before the court was whether the trial judge had erred in making a factual finding that was central to the sentence. The appellant contended that this finding was incorrect and had led to an unjust outcome. Additionally, the appellant argued that the total effective sentence of three years, with a non-parole period of two years, was manifestly excessive. The court had to consider these arguments and determine if there was any merit to the appellant's claims. The court also had to consider the application for an extension of time to file the notice of application for leave to appeal.
The court found that the trial judge had not erred in making the factual finding in question. The evidence presented at trial supported the judge's conclusion, and there was no basis for the appellant's contention. Regarding the sentence, the court held that while the sentence was indeed severe, it was not manifestly excessive. The court noted the seriousness of the offences and the need to deter similar conduct. The court also granted the extension of time to file the notice of application for leave to appeal, acknowledging the appellant's reasons for the delay. However, the court ultimately refused leave to appeal, finding that the appeal did not have a reasonable chance of success.
In summary, the High Court dismissed the appellant's claims that the trial judge had made an erroneous factual finding and that the sentence was manifestly excessive. The court granted the extension of time to file the notice of application for leave to appeal but refused leave to appeal, finding that the appeal did not have a reasonable chance of success.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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