Biricik v The King - [2023] VSCA 47

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0069

KORAY BIRICIK	Applicant
v
THE KING	Respondent

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JUDGES:	TAYLOR and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	1 March 2023
DATE OF JUDGMENT:	9 March 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 47
JUDGMENT APPEALED FROM:	DPP v Biricik [2022] VCC 611 (Judge Dalziel)

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CRIMINAL LAW – Appeal – Sentence – Two charges of trafficking in a drug of dependence, one charge of attempting to possess a drug of dependence and one charge of arson – Total effective sentence 3 years and 11 months’ imprisonment – Non-parole period of 2 years – Whether judge denied applicant natural justice by rejecting unchallenged evidence on matter in mitigation without proper notice – Whether sentence manifestly excessive – Leave to appeal refused.

PRACTICE AND PROCEDURE – Appeal – Application for leave to appeal – Consideration by single judge on papers – Leave refused – Written reasons given – Election to renew application – Need for proper basis for renewal – Criminal Procedure Act 2009, s 315(2) – Supreme Court (Criminal Procedure) Rules 2017, r 2.08.

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Counsel
Applicant:		Mr M Cennachi
Respondent:		Ms J Warren
Solicitors
Applicant:	AUM Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TAYLOR JA
KAYE JA:

Introduction and summary

On 9 February 2022 the applicant pleaded guilty to four charges as set out in the table below. On 6 May 2022 he was sentenced by a County Court judge as also set out in that table.

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Trafficking in a drug of dependence	15 years	1 year 6 months	6 months
2	Attempting to possess a drug of dependence	5 years	5 months	2 months
3	Arson	15 years	2 years 9 months	Base
4	Trafficking in a drug of dependence	15 years	2 years 6 months	6 months
Total Effective Sentence:		3 years 11 months
Non-Parole Period:		2 years
Pre-sentence Detention Declared:		226 days
Section 6AAA Statement:		Total Effective Sentence 5 years 6 months Non Parole-Period 4 years

On 19 October 2022 Kyrou JA refused the applicant leave to appeal.[1] Pursuant to s 315(2) of the Criminal Procedure Act 2009, he now seeks to renew his application for leave to appeal on the following grounds.
[1]Biricik v The King [2022] VSCA 223 (‘Leave Reasons’).
1. The applicant was denied natural justice when her Honour:
(a)rejected unchallenged evidence as to a matter in mitigation without putting the applicant on notice.
(b)Proceeded to draw conclusions from that rejection without affording the applicant an opportunity to be heard on the matter.
2.The sentences imposed on charges 3 and 4 and the non-parole period imposed are manifestly excessive having regard to:
(a)the lengthy delay coupled with the applicant’s exemplary conduct and advancements in rehabilitation while on bail.
(b)the absence of a palpable amelioration of sentence which ought to have been bestowed upon him as enunciated in Worboyes v R.[2]
(c)the applicant’s age, lack of prior…

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 Biricik v The King

Details

AGLC: Biricik v The King [2023] VSCA 47
Case: [2023] VSCA 47
Decision Date: 9 March 2023

CaseChat Overview and Summary

The applicant, Biricik, appealed against his sentence in the Supreme Court of Victoria, Criminal Division. He had been found guilty of two charges of trafficking in a drug of dependence, one charge of attempting to possess a drug of dependence, and one charge of arson. The total effective sentence imposed was three years and eleven months’ imprisonment, with a non-parole period of two years. The applicant argued that the trial judge denied him natural justice by rejecting unchallenged evidence on matters in mitigation without proper notice. Additionally, the applicant submitted that the sentence was manifestly excessive.

The court considered whether the applicant's evidence was adequately brought to the trial judge’s attention and if the sentence imposed was manifestly excessive. The court found that the trial judge had not denied the applicant natural justice as the evidence was not entirely unchallenged and the applicant had not provided proper notice of the matters in mitigation. Regarding the sentence, the court held that the trial judge had considered all relevant factors and appropriately weighed the seriousness of the offences and the applicant's offending history. The court concluded that the sentence was not manifestly excessive.

The Supreme Court refused leave to appeal against the sentence. The applicant subsequently elected to renew the application for leave to appeal, but the court found that there was no proper basis for renewal as the application did not meet the requirements of section 315(2) of the Criminal Procedure Act 2009 and rule 2.08 of the Supreme Court (Criminal Procedure) Rules 2017. Consequently, the applicant's appeal was dismissed.

Orders