Cemre Volkan v The Queen - [2019] VSCA 33

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0001

CEMRE VOLKAN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 February 2019
DATE OF JUDGMENT:	28 February 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 33
JUDGMENT APPEALED FROM:	[2018] VCC 1784 (Judge Lawson)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Trafficking in drug of dependence, 13 charges of possessing drug of dependence, and 10 related summary offences – Aggregate sentence – Whether aggregate sentence appropriate – Error conceded by Crown – Whether sentence of 12 months’ imprisonment combined with 2 year CCO manifestly excessive – Not reasonably arguable that sentence manifestly excessive – No reasonable prospect that Court of Appeal would reduce total effective sentence – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Pyne	Giorgianni & Liang Lawyers
For the Respondent	Ms G Coghlan	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA

BEACH JA:

The applicant pleaded guilty in the County Court to one charge of trafficking in a drug of dependence (charge 1) and 13 charges of possessing a drug of dependence (charges 2 to 14). The maximum term of imprisonment for trafficking a drug of dependence is 15 years. The maximum term of imprisonment for possessing a drug of dependence is five years or, where the Court is satisfied on the balance of probabilities that the offence was not committed for any purpose related to trafficking, one year.

At the same time as he pleaded guilty to the above charges, the applicant pleaded guilty to 10 summary charges: one charge of possessing a controlled weapon (summary charge 3), two charges of contravening a bail condition (summary charges 6 and 7), two charges of possessing a prohibited weapon (summary charges 10 and 53), four charges of committing an indictable offence while on bail (summary charges 15, 17, 18 and 20) and one charge of resisting an emergency worker (summary charge 54). The maximum terms of imprisonment in respect of the summary offences were as follows: possessing a controlled weapon, 1 year; contravening a bail condition, 3 months; possessing a prohibited weapon, 2 years; committing an indictable offence while on bail, 3 months; and resisting an emergency worker, 6 months.

On 29 October 2018, the applicant was sentenced in relation to charges 1 to 14 to an aggregate term of imprisonment of 12 months to be followed by a 2 year community correction order (‘CCO’), with conditions that the applicant undergo treatment and rehabilitation for drug offences, including testing and supervision. The applicant was sentenced on charge 2 on the basis that the maximum term of imprisonment was 5 years, and on charges 3 to 14 on the basis that the maximum term of imprisonment was 1 year. On the summary charges, the applicant was sentenced to a term of imprisonment of 3 months on the charge of resisting an emergency worker, and 1 month on…

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 Cemre Volkan v The Queen

Details

AGLC: Cemre Volkan v The Queen [2019] VSCA 33
Case: [2019] VSCA 33
Decision Date: 28 February 2019

CaseChat Overview and Summary

The applicant, Cemre Volkan, has applied for leave to appeal against the aggregate sentence imposed by the County Court of Victoria. Volkan was found guilty of trafficking in a drug of dependence, 13 counts of possessing a drug of dependence, and 10 related summary offences. The Crown conceded an error in the sentencing process, but the applicant argued that the combined sentence of 12 months’ imprisonment and a 2-year community corrections order was manifestly excessive.

The primary legal issue before the court was whether the aggregate sentence was appropriate and whether the applicant had demonstrated a reasonable prospect of success on appeal. The court was required to consider whether the sentence was manifestly excessive and whether there was a reasonable prospect that the Court of Appeal would reduce the total effective sentence.

The court held that it was not reasonably arguable that the sentence was manifestly excessive, given the nature and circumstances of the offences. The court also found that there was no reasonable prospect that the Court of Appeal would reduce the total effective sentence. Consequently, the application for leave to appeal was refused.

The court’s decision in this case highlights the importance of accurately calculating and justifying aggregate sentences, particularly in cases involving drug offences. The court’s refusal to grant leave to appeal reinforces the principle that the imposition of a sentence within the appropriate range should generally be left to the primary sentencing judge.

Orders