Biricik v The King
[2023] VSCA 47
•9 March 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0069 |
| KORAY BIRICIK | Applicant |
| v | |
| THE KING | Respondent |
---
| 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) |
---
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.
---
| 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 convictions and prospects for rehabilitation.
(d)the burdensome nature of the applicant’s incarceration during COVID considering his medical condition; and
(e)the applicant’s pleas of guilty and demonstrated remorse.
[2]This is a reference to Worboyes v The Queen [2021] VSCA 169 (‘Worboyes’).
For the reasons that follow, we would refuse the application.
In so doing we note that although the renewal entitles the applicant to a hearing de novo, considerable weight will be attached to carefully expressed reasons of a judge of this Court.[3] An applicant who cannot identify some quite significant matter which the leave judge has misunderstood or overlooked will face difficulty in persuading the renewal bench to reach a different conclusion. We note, respectfully, that the reasons given by Kyrou JA were cogent and comprehensive. There is nothing about them which suggests the possibility of a different outcome upon renewal.
[3]Booysen v The Queen [2014] VSCA 150, [9] (Redlich JA and Almond AJA).
Circumstances of the offending
In 2018 and 2019 the applicant along with two members of the Comanchero motorcycle club, Domenic Luzza and Fawzi El-Cheikh, were targets of a police investigation into the importation of border-controlled substances and drug trafficking. As part of that investigation, a listening device was installed in the Toyota Corolla vehicle driven by the applicant. The evidence obtained disclosed that the applicant committed the offending the subject of charges 1, 2 and 3 at the behest of Luzza, who was the Victorian treasurer of the Comancheros.
Charge 1 – trafficking in a drug of dependence
Charge 1 concerned four consignments of drugs sent from China to Australia and collected by the applicant between 21 January 2019 and 28 May 2019. The drugs concerned were methyl alpha-acetylphenylacetate (‘MAPA’) and fluorodeschloroketamine. MAPA is an analogue of phenyl-2-propanone which is used primarily in the manufacture of amphetamine and methylamphetamine. Fluorodeschloroketamine is an analogue of ketamine. Ketamine is commonly used in medicine as a pain killer but is also a drug of dependence consumed for its hallucinogenic and dissociative effects.
On 19 January 2019 the first parcel weighing 8.5 kilograms arrived in Australia labelled as containing a food preservative. It was released without examination by the Australian Border Force (‘ABF’). On 21 January 2019 the applicant collected the parcel from a FedEx depot. He produced his own driver’s licence and a handwritten note purporting to be from a person to whom the parcel was addressed. The prosecution case was that the parcel contained MAPA.
On 22 April 2019 the second parcel arrived in Australia labelled as containing a packing bag and with a declared weight of 500 grams. It was delivered to a collection locker without examination by the ABF. The parcel was collected by the applicant on 30 April 2019. The prosecution case was that the parcel contained MAPA.
On 12 May 2019 the third parcel arrived in Australia labelled as containing a pigment and with a declared weight of 600 grams. It was not examined by the ABF. Following several calls made from a telephone number connected to Luzza to the relevant TNT depot, the applicant collected the parcel on 15 May 2019. He used his own name. The prosecution case was that the parcel contained fluorodeschloroketamine.
On 25 May 2019 the fourth parcel arrived in Australia labelled as containing a resin and with a declared weight of 500 grams. It was not examined by the ABF. Luzza contacted TNT regarding the parcel using a telephone number registered in another person’s name. The following day, 28 May 2019, the applicant collected the parcel, producing his own driver’s licence to do so. The prosecution case was that the parcel contained fluorodeschloroketamine.
Listening devices placed in the applicant’s Toyota recorded him telling an associate on 15 August 2019 that Luzza gave him four or five hundred dollars each time he collected a consignment.
Charge 2 – attempt to possess a drug of dependence
On 1 February 2019, between the first and second parcel referred to above, another parcel arrived in Australia from China, labelled as containing a food preservative and with a declared weight of 50 kilograms. It was examined by the ABF and determined to contain MAPA of an unknown quantity.
On 4 February 2019, after receiving messages from El-Cheikh concerning the parcel, the applicant attended the relevant FedEx depot. He produced a handwritten note as suggested by El-Cheikh. He left after being told that the consignment was being held by the ABF. It was the prosecution case that El-Cheikh sent the messages at the direction of Luzza.
Charge 3 – arson
Nicholas Perechoden allegedly owed money to Luzza. Perechoden was released from prison on 2 May 2019 and thereafter used a rental car. It was a 2019 Hyundai i30 sedan valued at approximately $21,000. On 5 June 2019 the applicant drove his Toyota past Perechoden’s Reservoir home. The Toyota displayed ‘cloned’ number plates.[4] A short time later the applicant pulled up behind the Hyundai, then parked on the street in front of the house next to the Perechoden residence. Another man got out of the Toyota, doused the Hyundai with an accelerant and set it on fire. The man returned to the Toyota. The applicant drove away. The Hyundai was completely destroyed.
[4]That is, number plates illegally copied from registration plates belonging to a vehicle of the same type and colour.
Listening device product from the Toyota recorded the applicant discussing the arson. On 27 July 2019 he said, ‘My mate just said to me, I will give you five hundred bucks if you burn a car and I said … what if I take my own car, I’ll just use some plates and he said he would give me [a] thousand then and I’m like done! So I did it …’. On 19 August 2019 he said that he and ‘Adam Omar…burnt the car’.
Charge 4 – trafficking in a drug of dependence
Charge 4 alleged that the applicant engaged in Giretti[5] trafficking in cocaine between 16 July 2019 and 12 September 2019. Some 15 instances of the applicant selling cocaine in quantities between one gram and three and a half grams were particularised. The offending was proved by statements made by the applicant that were captured by the listening device in the Toyota.
Arrest and bail
[5]R v Giretti (1986) 24 A Crim R 112.
The applicant was arrested on 12 September 2019. Following a search of the Toyota police seized a set of scales and multiple small empty press-seal deal bags.
The applicant spent 226 days in custody before he was granted bail on 24 April 2020. He then spent 2 years and 12 days (a total of 742 days) on bail prior to being sentenced on 6 May 2022.
Evidence at the plea hearing
At the plea hearing the applicant tendered two reports by Bernard Healey, a clinical psychologist, and Amanda Brown, a drug counsellor.
The conclusion of the first report of Mr Healey dated 7 November 2019 described the applicant’s intellectual capacity as ‘well below average’. Mr Healey reported that testing revealed the applicant’s full-scale IQ to be 84, placing him at the 14th percentile. That meant that 86 per cent of his peers would perform better than him. Earlier in the report under the heading of ‘Testing’, Mr Healey stated that ‘[i]ntellectual testing was indicative of below average intellectual capacity.’ Mr Healey’s second report dated 10 December 2021 stated that subsequent testing indicated that the applicant’s full-scale IQ had improved to 86, placing him at the 19th percentile. That meant that 81 percent of his peers would perform better than him. Both reports also made observations about the applicant’s remorse and rehabilitation.
The report of Ms Brown dated 27 January 2022 detailed the applicant’s participation in drug counselling since May 2020 and observed that he had made ‘marked progress’ towards recovery and a pro-social lifestyle.
Sentencing remarks
The judge described the applicant’s offending the subject of charges 1 and 2 as ‘unsophisticated’ in light of his use of his own car and identification when collecting or attempting to collect the parcels. Her Honour noted that the applicant knew he was collecting or attempting to collect drugs of dependence but was not aware of their actual types or weights. Her Honour described the applicant as the ‘willing tool of Luzza’ and recorded that he received payment for each collected parcel. The judge noted that although the applicant’s role was ‘low in the hierarchy of the larger trafficking enterprise,’ such low level willing participants are essential to the trafficking business.[6]
[6]DPP v Biricik [2022] VCC 611, [25]-[29] (‘Sentencing Reasons’).
With respect to the offending the subject of charge 4 her Honour described the trafficking as ‘low level’ but not ‘lowest level street trafficking’.[7] The judge noted that the trafficking subsisted for nearly two months and was done for money. The applicant was in regular and sometimes daily contact with buyers and sellers. He was purchasing drugs and on-selling them.[8]
[7]Sentencing Reasons, [42]-[43].
[8]Sentencing Reasons, [80].
With respect to the offending the subject of charge 3, the judge noted that although the applicant was not the organiser of the arson, it was ‘planned offending, carried out for money’.[9] The applicant used cloned plates and accepted $1,000. Her Honour found the applicant’s moral culpability to be high.[10] Her Honour then considered current sentencing practices for the crime of arson.
[9]Sentencing Reasons, [38].
[10]Sentencing Reasons, [65], [81].
Her Honour noted the personal circumstances of the applicant, who was 21 years old at the time of offending and 24 years at the time of sentence. Her Honour noted his family circumstances, his schooling, his interest in soccer and his asthma condition. The judge then noted that the applicant commenced cocaine use at the age of 18 years. By the time he was 20 years old, he was inhaling up to two grams of cocaine daily. The judge also noted the applicant’s recent engagement with drug counselling, his move away from anti-social peers and the supportive network of family, friends and his employer.[11]
[11]Sentencing Reasons, [44]-[57].
Next the judge turned to the mental state of the applicant. After detailing the two full scale IQ results in the 2019 and 2021 reports of Mr Healey, her Honour remarked:
[61] Mr Healey, in the second report, said:
There was an updating of his situation since the November of 2019 when he was still in prison. Clearly some quite dramatic changes have occurred in his functioning since that time which really reflect very strongly in a practical way upon genuine remorse and the determination to remove himself altogether from the drug scene and to cease the intake of any illicit drugs.
[62]It was submitted on the plea that you have a very low IQ and were thus easily seduced into this offending. This was expanded by submitting that you were ‘seduced by patched motorcycle club members and became addicted to cocaine’ leading to debt and thus trafficking to pay the debt.
[63]I do not accept that the testing by Mr Healey indicates that you have what your counsel described as ‘very low IQ’. The testing shows that your intellectual functioning, described by Mr Healey as below average, falls in the Low Average Range. Whilst you were young at the time of this offending, and no doubt immature, I do not accept that your intellectual functioning made you vulnerable to others involving you in this offending, or reduced your moral culpability.
Her Honour then considered issues of the applicant’s guilty plea and level of remorse,[12] the period he had spent on remand,[13] his ‘excellent’ prospects for rehabilitation,[14] the effect of his medical conditions on his experience of custody[15] and issues of parity.[16] In her concluding remarks, the judge referred to the importance of general deterrence, the need for specific deterrence ‘moderated to a degree’ and factors of just punishment, denunciation and protection of the community.[17] Her Honour concluded that a sentence combining time already served in custody with a Community Correction Order (‘CCO’) would be inadequate in light of the applicant’s ‘serious criminal behaviour’.[18]
[12]Sentencing Reasons, [67]-[69].
[13]Sentencing Reasons, [70].
[14]Sentencing Reasons, [71]-[74].
[15]Sentencing Reasons, [75].
[16]Sentencing Reasons, [76]-[77].
[17]Sentencing Reasons, [78].
[18]Sentencing Reasons, [84]-[85].
Applicant’s submissions
Ground 1 – denial of natural justice
The applicant submits that the judge misdescribed the evidence of Mr Healey by describing his assessment of the applicant’s intellectual capacity as ‘low average’ when in fact Mr Healey’s assessment used the descriptor ‘well below average’. It is argued that this ‘rejection’ of Mr Healey’s categorisation had at least three effects. First, that the applicant was denied natural justice by her Honour’s failure to notify counsel for the applicant on the plea that she intended to reject unchallenged evidence relating to a matter in mitigation. Second, the issue was relevant to the defence submission that the applicant was ‘seduced’ by the Comanchero world, being a matter of significant mitigation. Third, the defence ought to have been afforded an opportunity to address the judge as to the inferences to be drawn from her Honour’s view of the evidence.
Ground 2 – manifest excess
The applicant submitted that the sentenced imposed by the judge on charges 3 and 4 could not have given sufficient weight to a number of powerful mitigatory factors. These were the evidence of Mr Healey and Ms Brown as to the applicant’s prospects for rehabilitation, current sentencing practices regarding arson, amelioration of sentence consequent upon his plea (including in light of Worboyes), and his health conditions.
Respondent’s contentions
Ground 1 – denial of natural justice
The respondent submits that the applicant’s intellectual functioning was not a matter which could mitigate sentence because Mr Healey did not give any evidence that the applicant suffered any intellectual impairment either at the time of the offending or at the time of the sentence. Accordingly, the judge did not reject Mr Healey’s evidence. Rather, she rejected the submission advanced by defence counsel which was contrary to that evidence.
Further, the respondent submits that the judge’s use of the descriptor ‘low average range’ does not amount to a rejection of Mr Healey’s evidence. The complaint is one of form rather than substance.
Ground 2 – manifest excess
The respondent submits that the offending on charges 3 and 4 was serious. The sentencing judge balanced the mitigating factors available to the applicant with his high moral culpability and the need for the sentence to adequately denounce the applicant’s conduct, punish him for the offending and deter others from engaging in similar conduct.
Her Honour’s finding that a term of imprisonment combined with a CCO was not a disposition that was open in the circumstances[19] does not render the sentence manifestly excessive. Further, the non-parole period represents 51 percent of the total effective sentence, indicating that the sentencing judge gave considerable weight to advancing the applicant’s rehabilitation.
[19]The respondent noted that at the plea hearing, defence counsel conceded that the offending necessitated a term of imprisonment, but submitted that it should be combined with a CCO.
Analysis
Ground 1 – denial of natural justice
There is no substance in the first ground.
Mr Healey used two descriptors in his first report, ‘below average’ and ‘well below average’ to describe the intellectual capacity of the applicant. Significantly, both descriptors were based on the actual IQ result of 84. The sentencing judge’s phraseology was not incorrect and was also based, explicitly, on a reference to the full scale IQ result of 84. The argument that her Honour rejected the evidence of Mr Healey cannot be sustained.
Further, Mr Healey’s evidence was not that the applicant’s intellectual capacity resulted in him being seduced by Comanchero club members or that it causally contributed to his offending. Rather, at the plea hearing defence counsel made a submission to that effect. Her Honour was correct to reject that submission as it was without foundation in Mr Healey’s evidence.
No submission was made to the sentencing judge that the applicant’s intellectual functioning was relevant to the issues of remorse and rehabilitation. In any event, her Honour made findings favourable to the applicant regarding his likelihood of reoffending, remorse and prospects for rehabilitation.
Ground 2 – manifest excess
The offending the subject of charges 3 and 4 was serious. The arson was planned, committed for monetary reward, committed in a residential street outside the victim’s home and resulted in the complete destruction of a vehicle valued at approximately $21,000. The trafficking of cocaine was carried out over nearly two months. It was a business for personal financial reward in which the applicant bought cocaine and on-sold it to his customers in quantities between one and three and a half grams. Some of the applicant’s customers were also traffickers.
The sentencing judge was correct to assess the applicant’s moral culpability for this offending as high. Balancing the seriousness of the offending, the obvious need for denunciation and general deterrence and the applicant’s moral culpability with the mitigatory factors he could call in aid, the sentences imposed for each charge were moderate.
Both charges 3 and 4 carried a maximum penalty of 15 years. The sentence of 2 years and 9 months’ imprisonment imposed for arson reflects that her Honour adequately balanced all relevant matters and, further, is consistent with current sentencing practice. The sentence of 2 years and 6 months’ imprisonment on charge 4 is also explicable only on the basis that the judge gave full weight to the mitigatory factors available to the applicant.
The six months’ cumulation of count 4 on count 3 was moderate and, overall, the non-parole period of 2 years’ imprisonment is, as described by Kyrou JA, generous.[20]
[20]Leave Reasons, [66].
It follows that there is no substance in ground 2.
---
0
4
0