Dieni v The King - [2024] VSCA 76

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0072

ANTHONY DIENI	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH, KAYE and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	23 April 2024
DATE OF JUDGMENT:	30 April 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 76
JUDGMENT APPEALED FROM:	[2020] VCC 1377 (Judge Riddell)

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CRIMINAL LAW – Conviction – Application for extension of time within which to seek leave to appeal against conviction – Applicant pleaded guilty to 11 charges – Crown conceded that no basis upon which applicant could be convicted on one of the charges – Orders made setting aside conviction and sentence on one of 11 charges – No change to total effective sentence or non-parole period – Applicant’s complaints with respect to convictions on remaining 10 charges totally without merit – Application for extension of time within which to appeal against remaining 10 convictions refused.

CONFISCATION – Pecuniary penalty order – Application for extension of time within which to seek leave to appeal against pecuniary penalty order – Pecuniary penalty order previously relied upon as fresh evidence which re-opened sentencing discretion – Applicant’s sentence previously reduced on appeal because of pecuniary penalty order being accepted as fresh evidence re-opening sentencing discretion – No explanation for delay – Applicant not now permitted to resile from earlier inconsistent position – Application totally without merit – Application for extension of time refused.

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Counsel
Applicant:	Mr TF Danos
Respondent:	Ms E Ruddle KC

Solicitors
Applicant:	Victorian Bar Pro Bono Scheme
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
KAYE JA
T FORREST JA:

On 18 December 2019, the applicant pleaded guilty to six charges of attempting to pervert the course of justice (charges 1 to 3 and 6 to 8), two charges of trafficking in a drug of dependence (charges 4 and 5), one charge of false accounting (charge 9), one charge of possessing a general category longarm (charge 10) and one charge of possessing an unregistered general category handgun (charge 11).
On 4 September 2020, following a plea hearing conducted on 23 June 2020 and 3 and 13 August 2020, the applicant was sentenced to a total effective sentence of 14 years, with a non-parole period of 9 years.[1] It is not necessary to set out all of the sentences and orders for cumulation that made up this total effective sentence. For present purposes, it is sufficient to note that the base sentence was imposed on charge 2; the sentence on charge 9 was 4 years, of which 22 months was ordered to be served cumulatively; and the sentence on charge 10 was 1 month, with no order as to cumulation.
[1]DPP v Dieni [2020] VCC 1377 (‘Primary Reasons’).
On 2 March 2021, some six months after the applicant was sentenced, the sentencing judge (with the applicant’s consent) made a pecuniary penalty order (‘PPO’) in the sum of $448,805.76, pursuant to s 60 of the Confiscation Act 1997.[2] The PPO was made…

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 Dieni v The King

Details

AGLC: Dieni v The King [2024] VSCA 76
Case: [2024] VSCA 76
Decision Date: 30 April 2024

CaseChat Overview and Summary

In the case of Dieni v The King, the applicant sought an extension of time to appeal against his conviction and sentence on 11 charges, as well as against a pecuniary penalty order. The applicant had previously pleaded guilty to all charges, but argued that the Crown had conceded there was no basis for one of the convictions. The applicant also sought an extension to appeal against the pecuniary penalty order, which had previously been considered as fresh evidence that reopened the sentencing discretion, leading to a reduction in his sentence on appeal.

The legal issues before the court were whether the applicant was entitled to an extension of time to appeal against his conviction and sentence on the 11 charges, and whether he was entitled to an extension of time to appeal against the pecuniary penalty order. The court had to consider the applicant’s arguments, the Crown’s response, and whether the applicant’s applications were meritorious.

The court found that the applicant's complaints with respect to his convictions on the remaining 10 charges were totally without merit, and that there was no basis for the Crown to concede that there was no basis for the conviction on one of the charges. The court also found that the applicant's application for an extension of time to appeal against the pecuniary penalty order was totally without merit, as he had previously relied upon the order as fresh evidence that reopened sentencing discretion, and there was no explanation for his delay in seeking an extension. The court held that the applicant was not now permitted to resile from his earlier inconsistent position, and that his applications were refused. The court made orders setting aside the conviction and sentence on one of the 11 charges, but this did not change the total effective sentence or non-parole period.

Orders