Biricik v The King - [2022] VSCA 223

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0069

KORAY BIRICIK	Applicant
v
THE KING	Respondent

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JUDGES:	KYROU JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	19 October 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 223
JUDGMENT APPEALED FROM:	[2022] VCC 611 (Judge Dalziel)

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CRIMINAL LAW – Appeal – Sentence – Two charges of trafficking in drug of dependence, 1 charge of attempting to possess drug of dependence and 1 charge of arson – Total effective sentence 3 years, 11 months’ imprisonment, non-parole period 2 years – Whether judge denied applicant natural justice by rejecting unchallenged evidence on matter in mitigation without giving prior notice – Whether sentence manifestly excessive – Leave to appeal refused.

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

KYROU JA:

Introduction and summary

On 9 February 2022, the applicant pleaded guilty to the charges set out in the table below and, on 6 May 2022, he was sentenced by a County Court judge as set out in that table:[1]
[1]DPP v Biricik [2022] VCC 611 (‘Sentencing remarks’).

Charge

Offence

Max Penalty

Sentence

Cumulation

1 Trafficking in a drug of dependence [s 71AC(1) Drugs, Poisons & Controlled Substances Act 1981 (‘DPCSA’)] 15 years 1 year, 6 months 6 months

2 Attempting to possess a drug of dependence [s 73(1) DPCSA] 5 years 5 months 2 months

3 Arson [s 197(1) & (6) Crimes Act 1958] 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

Section 6AAA Statement: 5 years, 6 months; Non-Parole Period 4 years

The applicant now seeks leave to appeal on the following grounds:[2]
[2]In these reasons, proposed grounds of appeal are referred to as grounds of appeal. The reference to Worboyes v R in ground 2 is to Worboyes v The Queen (2021) 96 MVR 344, 356 [35]; [2021] VSCA 169 (‘Worboyes’).
1The 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.
2The 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.
(c)the Applicant’s age, lack of prior convictions and prospects of 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.
For the reasons that follow, the application for leave to appeal will be refused.

Circumstances of…

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 [2022] VSCA 223
Case: [2022] VSCA 223
Decision Date: 19 October 2022

CaseChat Overview and Summary

Biricik was convicted on 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 appeal concerns the sentence imposed by the trial judge. The total effective sentence was 3 years and 11 months’ imprisonment, with a non-parole period of 2 years. The applicant argued that the sentence was manifestly excessive and that the trial judge denied natural justice by rejecting unchallenged evidence on a matter in mitigation without giving prior notice.

The applicant argued that the trial judge had failed to give proper consideration to mitigating factors. The primary contention was that the judge did not provide prior notice before rejecting unchallenged evidence that could have been considered in mitigation. The applicant contended that this breach of natural justice warranted the sentence to be reviewed. Additionally, the applicant submitted that the sentence was manifestly excessive, considering the totality of circumstances, including the applicant’s background and the nature of the offending.

The court found that there was no breach of natural justice. It was held that the trial judge had considered the evidence provided and had adequately addressed the mitigating factors. The court was satisfied that the sentence was not manifestly excessive, taking into account the seriousness of the offences and the need for general deterrence. The court also considered the cumulative impact of the offences and found that the sentence was within the appropriate range for such convictions.

The court refused leave to appeal, affirming the sentence imposed by the trial judge. The applicant's appeal was dismissed, and the original sentence stood.

Orders