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Arici v The Queen

Arici v The Queen

Case [2019] VSCA 228 15 October 2019

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0250

AKIN ARICI	Appellant
v
THE QUEEN	Respondent

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JUDGES:	BEACH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 October 2019
DATE OF JUDGMENT:	15 October 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 228
JUDGMENT APPEALED FROM:	DPP v Arici [2018] VCC 1744 (Judge Condon)

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CRIMINAL LAW – Appeal – Sentence – Trafficking not less than commercial quantity of a drug of dependence – Quantity of 74.5 kilograms of 1,4-Butanediol – Pleas of guilty – Total effective sentence of 6 years’ imprisonment with non-parole period of 4 years imposed on appellant – Total effective sentence of 4 years and 9 months’ imprisonment with non-parole period of 3 years imposed on co-offender – Characterisation of appellant as a ‘sitter’ and co‑accused as a ‘courier’ – Parity raised as issue at plea –Unclear statement by sentencing judge that ‘measure of parity’ required between appellant and co-offender – Lower moral culpability of appellant – Significant mitigating circumstances in support of appellant –Appeal allowed – Appellant resentenced to total effective sentence of 5 years’ imprisonment with non-parole period of 3 years and 3 months.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D Grace QC	Melasecca Kelly & Zayler
For the Respondent	Mr C T Carr	Mr J Cain, Solicitor for Public Prosecutions

BEACH JA
WEINBERG JA:

On 5 July 2018, the appellant pleaded guilty in the County Court to a number of drug trafficking and drug possession offences. He also pleaded guilty to possession of a firearm while a prohibited person, and negligently dealing with proceeds of crime. On 25 October 2018, he was sentenced as follows:

Charge on

Indictment
Offence Maximum Sentence Cumulation

1.     Trafficking in not less than a commercial quantity of a drug of dependence (1,4‑Butanediol) [s 71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981]
25 years’ imprisonment
4 years Base

2.     Trafficking in not less than a commercial quantity of a drug dependence (Methylamphetamine)
25 years’ imprisonment
4 years 2 years

3.     Possession of a drug of dependence (MDMA) [s 73(1)(c) of the Drugs, Poisons and Controlled Substances Act] 400 penalty units or 5 years’ imprisonment 12 months —

4.     Possession of a drug of dependence (Cocaine) 400 penalty units or 5 years’ imprisonment 3 months —

5.     Possession of a drug of dependence (Cannabis L) 400 penalty units or 5 years’ imprisonment 3 months —

6.     Possessing a firearm while a prohibited person [s 5(1) of the Firearms Act 1996] 1200 penalty units or 10 years’ imprisonment 18 months —

7.     Negligently dealing with proceeds of crime [s 194(4) of the Crimes Act 1958] 5 years’ imprisonment 6 months —

Total Effective Sentence: 6 years’ imprisonment

Non-Parole Period: 4 years’ imprisonment

(1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18: 123 days

6AAA Statement: 8 years’ imprisonment with a non-parole period of 6 years.

Other relevant orders: Pursuant to s 6B(2) of the Sentencing Act 1991

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 Arici v The Queen

Details

AGLC: Arici v The Queen [2019] VSCA 228
Case: [2019] VSCA 228
Decision Date: 15 October 2019

CaseChat Overview and Summary

The appellant, Arici, was convicted and sentenced for trafficking in a drug of dependence, specifically 74.5 kilograms of 1,4-Butanediol. The matter was heard in the High Court of Australia, which was asked to consider the appropriateness of the sentence imposed by the lower court. The appellant, along with a co-offender, had entered pleas of guilty to the charges. The primary legal issue before the court was whether the sentence imposed on the appellant was appropriate in light of the roles played by the appellant and the co-offender, and the mitigating factors presented on behalf of the appellant.

The court examined the roles played by the appellant and the co-offender, characterising the appellant as a 'sitter' and the co-offender as a 'courier'. The sentencing judge had referred to the need for 'parity' between the sentences of the appellant and the co-offender, but the court found that this was not clearly articulated. The court further noted that the appellant had lower moral culpability compared to the co-offender and that there were significant mitigating factors in the appellant’s favour. Given these considerations, the court found that the sentence imposed on the appellant was excessive.

The High Court allowed the appeal and resentenced the appellant to a total effective sentence of 5 years’ imprisonment with a non-parole period of 3 years and 3 months. This decision reflected the appropriate consideration of the roles, moral culpability, and mitigating factors presented in the case. The High Court’s re-sentencing ensured that the punishment met the principles of justice and proportionality.

Orders