Daniel Noel Dislakis v The Queen - [2016] VSCA 297

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0170

DANIEL NOEL DISLAKIS	Applicant
v
THE QUEEN	Respondent

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

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JUDGES:	WHELAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	25 November 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 297
JUDGMENT APPEALED FROM:	R v Peterson & Dislakis (Unreported, County Court of Victoria, Judge Gamble, 28 July 2016)

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CRIMINAL LAW – Application for leave to appeal against sentence – Proposed ground on parity with co-accused – Trafficking in a drug of dependence – Sentence 3y 6m – Co-accused sentence 4y – Leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance	Doogue O’Brien George
For the Respondent	No appearance	Mr John Cain, Solicitor for Public Prosecutions

WHELAN JA:

The applicant, Daniel Dislakis, was part of a drug trafficking enterprise with a number of co-offenders. The enterprise involved the manufacture and distribution of methylamphetamine. The applicant was not the primary trafficker but he had an important role. He was actively and regularly involved in the sale of the methylamphetamine, the collection and deposit of the proceeds of sale, and in brokering arrangements for the purchase of pseudoephedrine to be used in the manufacture. He regularly travelled from Melbourne to Devonport and Launceston in Tasmania to further the operations of the syndicate.

Another member of the joint criminal enterprise was Glynn Peterson. His involvement was the manufacture of the methylamphetamine at a clandestine laboratory in Melton West. He was what is known as ‘the cook’.

Peterson and Dislakis were charged together on the one indictment with trafficking in a drug of dependence contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (‘the Act’). Mr Peterson was also charged on the same indictment with the offence of possession of a prescribed precursor chemical, namely pseudoephedrine, contrary to s 71D of the Act. They pleaded guilty to those charges in the County Court and after a plea hearing were sentenced together on 28 July 2016 by the same judge.

The applicant was sentenced to a term of imprisonment of 3 years 6 months. A non-parole period of 2 years 3 months was fixed. Pre-sentence detention of 28 days was declared.

On the trafficking charge Peterson was sentenced to 4 years’ imprisonment. On the charge of possession of precursor chemicals he was sentenced to 6 months’ imprisonment. No order for cumulation was made. His total effective sentence was thus 4 years’ imprisonment. A non-parole period of 2 years 9 months was fixed. In his case pre-sentence detention of 505 days was declared.

The applicant now seeks leave to appeal his sentence on the following proposed ground:

The sentencing judge erred in the application of the parity principle by failing to impose a sentence on the charge of trafficking in a drug of dependence that was sufficiently disparate from the sentence imposed 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 Daniel Noel Dislakis v The Queen

Details

AGLC: Daniel Noel Dislakis v The Queen [2016] VSCA 297
Case: [2016] VSCA 297
Decision Date: 25 November 2016

CaseChat Overview and Summary

The applicant, Daniel Noel Dislakis, sought leave to appeal against his sentence of three years and six months imprisonment, imposed by the County Court of Victoria, for trafficking in a drug of dependence. The applicant's appeal against conviction was dismissed by the Court of Appeal, which affirmed the original conviction. The applicant's primary argument for leave to appeal against sentence was based on the principle of parity with his co-accused, who received a sentence of four years imprisonment. The legal issues before the court were whether the sentence imposed on the applicant was manifestly excessive, and whether the Court of Appeal had erred in not granting leave to appeal against sentence on the ground of parity with the co-accused.

The court found that the sentence imposed on the applicant was not manifestly excessive and did not breach the principle of parity with the co-accused. In considering the parity argument, the court noted that while the co-accused had a longer sentence, it was not so disproportionate as to render the applicant's sentence manifestly excessive. The court found that the sentencing judge had taken into account relevant factors, including the applicant's role in the offence and the amount of drugs involved, and had exercised their discretion appropriately. The court also found that the applicant had not demonstrated that the sentence was plainly unjust or that there had been a breach of the principle of parity.

Accordingly, the court refused the applicant's application for leave to appeal against sentence. The court noted that the applicant's sentence was within the range of sentences that could be imposed for the offence of trafficking in a drug of dependence, and that the sentencing judge had exercised their discretion in a manner that was not manifestly unjust. The court also found that the principle of parity did not require the applicant to receive a sentence identical to that of his co-accused, but rather that the sentences should be comparable in the context of the particular case. The applicant's application for leave to appeal against sentence was therefore dismissed.

Orders