Legal Research
Cases
Abdullayev v The King

Abdullayev v The King

Case [2022] VSCA 225 19 October 2022

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0117

RUSLAN ABDULLAYEV	Applicant
v
THE KING	Respondent

---

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)

---

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.

---

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…

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 Abdullayev v The King

Details

AGLC: Abdullayev v The King [2022] VSCA 225
Case: [2022] VSCA 225
Decision Date: 19 October 2022

CaseChat Overview and Summary

Abdullayev was charged with one count of attempted trafficking in a drug of dependence and two counts of possession of a drug of dependence. The case was heard in the High Court of Australia, which was asked to review the sentence handed down by a lower court. The appellant contested the sentence, arguing that the trial judge had made an erroneous factual finding and that the sentence was manifestly excessive. The appellant also sought an extension of time to file a notice of application for leave to appeal.

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