JUDGES:	BEACH, KAYE and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 November 2021
DATE OF JUDGMENT:	24 February 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 16
JUDGMENT APPEALED FROM:	[2020] VCC 1377 (Judge Riddell)

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CRIMINAL LAW – Sentence – Appeal – Attempting to pervert the course of justice (6 charges), trafficking in drug of dependence (2 charges), false accounting, possessing firearms (2 charges) – TES of 14 years, with NPP of 9 years – Manifest excess – Crown concession that TES and NPP manifestly excessive – Crown concession that specific individual sentences manifestly excessive – Complaints of specific error not made out – Fresh evidence – Serious offending in misleading courts when giving evidence in bail/sentencing proceedings – Courts needing to be able to rely on such evidence – Very significant utilitarian value of applicant’s plea of guilty – Applicant aged 74 with significant health issues – Appeal allowed – Applicant resentenced to TES of 9 years, with NPP of 5 years.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms G F Connelly	Valos Black & Associates
For the Respondent	Mr P L Bourke QC	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
KAYE JA
T FORREST JA:

For many years going back into the 1980s, the applicant was involved in the operations of a drug and alcohol rehabilitation charity known as the St Paul’s Prevention Rehabilitation (‘St Paul’s’). On 18 December 2019, the applicant pleaded guilty to six charges of attempting to pervert the course of justice, two charges of trafficking in a drug of dependence, one charge of false accounting, one charge of possessing a general category longarm and one charge of possessing an unregistered general category handgun. The applicant’s offending occurred between 2012 and 2017.

At the time of his offending, the applicant was the coordinator of, and a counsellor for, St Paul’s. In the course of his employment, the applicant gave evidence from time to time in bail applications, plea hearings and other court-related matters. The attempting to pervert the course of justice charges to which the applicant pleaded guilty relate to six matters (Grae, Martin, Raydan, Violatzi, Elabed and Georgiou) in which the applicant had an involvement in the course of his employment.

Specifically, the attempting to pervert the course of justice charges arose out of the applicant giving undertakings to courts in bail applications, which undertakings the applicant failed to comply with; or taking steps to deny sentencing courts knowledge of the true facts and circumstances of cases before them; or giving false evidence; or agreeing to mislead Corrections Victoria and/or a court as to the true circumstances of an applicant’s compliance with his community correction order; or attempting to mislead a court as to the true circumstances of an accused’s compliance with bail conditions.

In relation to the charges of trafficking in drugs of dependence, the prosecution case was that…

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 Queen

Details

AGLC: Dieni v The Queen [2022] VSCA 16
Case: [2022] VSCA 16
Decision Date: 24 February 2022

CaseChat Overview and Summary

The matter of Dieni v The Queen involved the appellant, Dieni, appealing against his total effective sentence (TES) of 14 years, with a non-parole period (NPP) of 9 years, which had been imposed by the County Court of Victoria. Dieni was convicted on various charges, including attempting to pervert the course of justice, trafficking in drugs, false accounting, and possessing firearms. The appeal centred on the contention that the sentence was manifestly excessive and that specific individual sentences were also manifestly excessive. The Crown conceded these points but argued against the appellant’s other complaints and the admissibility of fresh evidence. The appellant also sought to argue that the TES and NPP should be reduced further due to his age, health issues, and the significant utilitarian value of his plea of guilty.

The court was required to consider whether the sentence imposed was manifestly excessive. This involved assessing the severity of the offences and the appellant’s conduct, particularly his attempts to mislead the courts during bail and sentencing proceedings. The court also needed to determine if the Crown’s concessions regarding the manifest excess of the sentence and specific individual sentences were valid and whether the fresh evidence should be considered. Additionally, the court had to weigh the appellant’s age, health issues, and the value of his plea of guilty against the gravity of his offending behaviour.

The Court of Appeal found that the Crown's concessions about the manifest excess of the sentence and specific individual sentences were valid. The court held that the evidence of the appellant's misleading conduct in court was crucial for the courts to rely upon, highlighting the significant utilitarian value of the appellant’s plea of guilty. The court also acknowledged the appellant’s age and health issues but considered these factors insufficient to warrant a significant reduction in the sentence. The appeal was allowed, and the appellant was resentenced to a TES of 9 years, with a NPP of 5 years.

The final orders of the Court of Appeal were that the appellant's appeal against sentence was allowed, and he was resentenced to a TES of 9 years, with a NPP of 5 years. The Court of Appeal considered the totality of the circumstances, including the appellant’s conduct, the value of his plea of guilty, and his age and health issues, in arriving at the new sentence.

Orders