and GIOVANNI Polimeni v The QUEEN - [2014] VSCA 72

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…

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.

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Details

Case: [2014] VSCA 72
Decision Date: 16 April 2014

CaseChat Overview and Summary

The defendant, Giovanni Polimeni, applied to the court for leave to appeal against his conviction for conspiracy to possess a commercial quantity of cocaine. The case reached the court following Polimeni's conviction and subsequent sentence of 18 years' imprisonment with a non-parole period of 12 years. Polimeni argued that the conviction was flawed due to a curtailment in his legal aid funding, which he claimed resulted in a substantial miscarriage of justice. He also contended that the judge's failure to recuse themselves due to apprehended bias vitiated the conviction. Additionally, Polimeni claimed that the sentence was excessive and unfair when compared to the sentences of his co-conspirators, and that the judge erred in determining his level of involvement in the conspiracy.

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.

Orders