SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0089
| GIOVANNI POLIMENI |
| Applicant |
| v |
| THE QUEEN |
| Respondent |
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| JUDGES | WEINBERG and COGHLAN JJA | |
| WHERE HELD | MELBOURNE | |
| DATE OF HEARING | 7 March 2014 | |
| DATE OF JUDGMENT | 16 April 2014 | |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 72 | First revision 16 April 2014, [15] |
| JUDGMENT APPEALED FROM | DPP v Polimeni (Unreported, County Court of Victoria, Judge Montgomery, 15 April 2013) | |
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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant convicted of conspiracy to possess a commercial quantity of an unlawfully imported border controlled drug – Application for extension of time to add proposed new grounds – Proposed new grounds alleged prosecution made inconsistent and unfair use of intercepted communications between co-conspirators - No point of principle - Application for extension of time refused - Leave to appeal refused.
CRIMINAL LAW – Application for leave to appeal against sentence – Applicant sentenced to 18 years' imprisonment with a non-parole period of 12 years – Leave to appeal refused.
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| APPEARANCES: | COUNSEL | SOLICITORS |
| For the Applicant | Mr B Walmsley SC | Acquaro & Co |
| For the Crown | Mr D J Lane | Director of Public Prosecutions (Commonwealth) |
WEINBERG JA:
I agree, for the reasons given by Coghlan JA, that leave to appeal should be refused.
COGHLAN JA:
After a trial lasting thirteen days in the County Court at Melbourne, the applicant was convicted of:
Conspiracy to commit an offence of possessing a commercial quantity of an unlawfully imported border controlled drug, namely Cocaine, contrary to subsection 11.5(1) and subsection 307.5(1) of the Criminal Code (Cth).
On 15 April 2013 he was sentenced to a term of 18 years’ imprisonment, with a non-parole period of 12 years.
By notice of appeal dated 20 June 2013, the applicant sought leave to appeal against conviction on the following grounds:
1.The learned trial judge erred in law in refusing the application to temporarily stay the commencement of the trial by adjourning it to a date to be fixed, and in failing to further order that the trial not commence until counsel for the accused had the assistance of his instructing solicitor for the duration of the trial, and by so doing, the learned trial judge failed to ensure that the applicant received a fair trial.
2The applicant apprehends that the learned trial judge was biased against him in that he had determined and announced, prior to the commencement of the trial, that the strength of the prosecution case should have persuaded him to plead guilty.
On the same day, the applicant also sought leave to appeal against sentence on the following grounds:
1.The judge erred in accepting that the level of the applicant’s involvement in the offending was as submitted by the Crown.
2.The judge erred in failing to apply or apply sufficiently the principle of parity.
3.The judge’s sentencing discretion miscarried by reason of bias due to the applicant’s failure to plead guilty.
4.The judge erred in failing to take delay sufficiently into account.
5.The…
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- Case
- [2014] VSCA 72
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the curtailment in legal aid funding constituted a substantial miscarriage of justice, rendering the conviction invalid. It also had to consider whether the failure to recuse the judge due to apprehended bias resulted in a vitiated conviction. The court needed to assess whether the sentence imposed was manifestly excessive or whether it breached the parity principle when compared to the sentences of co-conspirators. The court also had to evaluate whether the sentence was vitiated by ostensible bias or whether the judge made sufficient allowance for the delay in the proceedings.
The court found that the curtailment in legal aid did not result in a substantial miscarriage of justice. It held that the judge's failure to recuse themselves due to apprehended bias did not vitiate the conviction, as there was no real danger of bias as per the principles set out in Ebner v Official Trustee in Bankruptcy and R v Balic. The court also found that the sentence was not manifestly excessive, and there was no breach of the parity principle. It held that the judge made sufficient allowance for the delay in the proceedings and that there was no ostensible bias. The application for leave to appeal was dismissed.
The court dismissed the application for leave to appeal against both the conviction and the sentence. The court held that the curtailment in legal aid funding did not result in a substantial miscarriage of justice and that the judge's failure to recuse themselves due to apprehended bias did not vitiate the conviction. The court also found that the sentence was not manifestly excessive and did not breach the parity principle. The application for leave to appeal was dismissed in its entirety.
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