Dagher v The Queen

[2011] VSCA 119

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0607

MAYER DAGHER	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG, MANDIE and BONGIORNO JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 March 2011
DATE OF JUDGMENT:	10 May 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 119
JUDGMENT APPEALED FROM:	R v Dagher and Haddad (Unreported, County Court of Victoria, Judge McInerney, 20 April 2009)

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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant convicted of trafficking in large commercial quantity of drug of dependence – Trial judge directed jury, at request of applicant, as to joint criminal enterprise – No apparent reason as to why concept of joint criminal enterprise introduced into trial – Whether jury misdirected as to requirement of ‘reasonable evidence’, apart from acts or words, of common purpose - Tripodi v The Queen (1961) 104 CLR 1 and Ahern v The Queen (1988) 165 CLR 87 – Trial judge’s comment to jury regarding defence failure to comply with rule in Browne v Dunn – Whether failure to give appropriate ‘balancing direction’ – Accomplice evidence – Whether warning given as to dangers of acting upon such evidence impermissibly diluted – Leave to appeal against conviction refused.

CRIMINAL LAW – Application for leave to appeal against sentence – Applicant sentenced to term of nine years’ imprisonment on count of trafficking in large commercial quantity – Total effective sentence nine years and nine months – Minimum term of six years – Sentences not manifestly excessive – No error in characterising level of applicant’s culpability – Leave to appeal against sentence refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C B Boyce	Valos Black & Associates
For the Respondent	Mr B Sonnett	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

1  I agree with Mandie JA.

MANDIE JA:

2  This is an application for leave to appeal against conviction, or if the convictions are sustained, against sentence.  There were two presentments and the applicant pleaded guilty to the two counts in the first presentment and he pleaded guilty to counts 3 to 7 on the second presentment but not guilty to count 1 which was a charge of trafficking in a large commercial quantity of ecstasy.  On 8 April 2009 a County Court jury returned a verdict of guilty on count 1 and, after a plea hearing, the applicant was sentenced on 20 April 2009.  The convictions and the sentences thereon were as follows:

Presentment U02047681

Count	Description	Sentence	Cumulation
1	Being a prohibited person in possession of ammunition	3 months	Concurrent
2	Handling stolen goods	6 months	To be served concurrently with the sentence imposed on presentment C0605332.2

Presentment C0605332.2

Count	Description	Sentence	Cumulation
1	Traffick in a large commercial quantity of a drug of dependence	9 years	Base sentence
3	Possession of a drug of dependence	3 months	Concurrent
4	Possession of a drug of dependence	3 months	Concurrent
5	Possession of a drug of dependence	$340.26 fine
6	Assault police	6 months