JUDGES:	MAXWELL P, T FORREST and WALKER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 May 2021
DATE OF JUDGMENT:	6 August 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 215
JUDGMENT APPEALED FROM:	[2020] VCC 351 (Judge Allen)

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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Drug trafficking – Firearms dealings – Large commercial quantity of methylamphetamine and cocaine – 1.9 times LCQ threshold – Disposing of unregistered firearms – Possession of firearms in breach of Firearm Prohibition Order – Trafficking sentence 6 years and 6 months – Total effective sentence 10 years, non-parole period 6 years – Whether manifestly inadequate – Standard sentence of 16 years for LCQ trafficking – Plea of guilty – Drug and firearms sold to covert operative – Serious criminal history – Offences committed while on parole – Offending began soon after service of Firearm Prohibition Order – Lethal weapons – Need for specific and general deterrence and community protection – Appeal allowed – Resentenced to 14 years’ imprisonment, non-parole period 10 years – Gregory (a pseudonym) v The Queen [2017] VSCA 151, Quah v The Queen [2021] VSCA 164, Rahmani v The Queen [2021] VSCA 51, Brown v The Queen (2019) 59 VR 462 applied – Drugs, Poisons and Controlled Substances Act1981 ss 71, 73(1), Firearms Act1996 ss 96(2A), 101A, 112B.

CRIMINAL LAW – Appeal – Conviction – Possessing drug of dependence – Plea of guilty – Offence as charged not known to law – Definition of ‘drug of dependence’ – Charge amended by consent – Taylor v The Queen [2020] VSCA 50 applied – Drugs, Poisons and Controlled Substances Act1981 ss 4, 73(1).

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APPEARANCES:	Counsel	Solicitors
For the Appellant/Respondent	Ms D I Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions
For the Applicant/Respondent	Mr T Game SC with Mr P Smallwood	Emma Turnbull Lawyers

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MAXWELL P
T FORREST JA
WALKER JA:

Summary

The respondent (‘MK’) pleaded guilty to one charge of trafficking in a large commercial quantity (‘LCQ’) of a drug of dependence (methylamphetamine and cocaine) and to a series of firearms offences, the most serious of which was disposing of a traffickable quantity of unregistered firearms.[1]
[1]The respondent’s initials are used purely for ease of reference.

A sentence of 6 years and 6 months’ imprisonment was imposed on the trafficking charge, and a sentence of 3 years and 6 months’ imprisonment on the charge of disposing of firearms. The other firearms offences attracted sentences of 1 year and 6 months (1 charge) and 1 year (4 charges). The total effective sentence was 10 years’ imprisonment and a non-parole period of 6 years was fixed.

The Director of Public Prosecutions now appeals against the individual sentences the total effective sentence and the non-parole period on the ground 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 DPP v Kumas

Details

AGLC: Director of Public Prosecutions v Mehmet Kumas [2021] VSCA 215
Case: [2021] VSCA 215
Decision Date: 6 August 2021

CaseChat Overview and Summary

The defendant, Kumas, was convicted in the County Court of Victoria for drug trafficking and firearms offences, and the Director of Public Prosecutions appealed the sentence imposed by the County Court. Kumas was found to have dealt with a large commercial quantity of methylamphetamine and cocaine, 1.9 times the large commercial quantity threshold, and also disposed of unregistered firearms and possessed firearms in breach of a Firearm Prohibition Order. The County Court sentenced Kumas to six years and six months for the trafficking offences, and an additional three years and nine months for the firearms offences, resulting in a total effective sentence of ten years with a non-parole period of six years. The Crown appealed the sentence as manifestly inadequate.

The Court of Appeal considered the factors relevant to sentencing, including the seriousness of the offending, the need for specific and general deterrence, and the protection of the community. The Court noted that the standard sentence for trafficking of a large commercial quantity of methylamphetamine and cocaine is 16 years, and that Kumas's offending was of a high degree of seriousness due to the large quantity of drugs and the possession and dealing of lethal weapons. The Court also considered Kumas's serious criminal history, which included previous drug and firearms offences, and the fact that the current offences were committed while Kumas was on parole and shortly after the expiry of a Firearm Prohibition Order. The Court concluded that the sentence imposed by the County Court was manifestly inadequate and resentenced Kumas to 14 years' imprisonment, with a non-parole period of 10 years.

In addition to the sentencing appeal, the Court also considered an appeal by Kumas against his conviction for possessing a drug of dependence. Kumas argued that the offence as charged was not known to the law, as the definition of 'drug of dependence' did not include the specific drug in question. However, the Court held that the charge was amended by consent, and that the appeal was without merit. The Court relied on the decision in Taylor v The Queen [2020] VSCA 50 and noted that the amendment did not affect the essential nature of the offence.

The final orders of the Court were that the appeal against sentence was allowed, and Kumas was resentenced to 14 years' imprisonment, with a non-parole period of 10 years. The appeal against conviction was dismissed.

Orders