Eneasi Taumoefolau v The Queen - [2015] VSCA 91

SUPREME COURT OF VICTORIA+

COURT OF APPEAL

S APCR 2015 0035

ENEASI TAUMOEFOLAU	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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JUDGE:	OSBORN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 May 2015
DATE OF JUDGMENT:	6 May 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 91
JUDGMENT APPEALED FROM:	DPP v Taumoefolau (Unreported, County Court of Victoria, Judge Gucciardo, 18 August 2014)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Trafficking in a drug of dependence – Sentence of 5 years’ imprisonment with a non-parole period of 3.5 years imposed – Whether judge erred in sentencing on the basis that trafficking is no less serious in respect of unsupplied drugs than in respect of those which are actually supplied – No arguable error demonstrated – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis	Valos Black & Associates
For the Respondent	Mr J B B Lewis	Ms V Anscombe, Acting Solicitor for Public Prosecutions

OSBORN JA:

The applicant seeks leave to appeal with respect to sentences imposed by his Honour Judge Gucciardo, on 18 August 2014, in respect of three charges of trafficking in a drug of dependence and one charge of possess prohibited weapon.

Charges on Indictment Offence Maximum Sentence Cumulation

1. Trafficking in a drug of dependence – Ecstasy [s.71AC of the Drugs, Poisons and Controlled Substances Act 1981]
15 Years

[s.71AC of the Drugs, Poisons and Controlled Substances Act 1981]
3 ½ years’ imprisonment Base

2.
Trafficking in a drug of dependence -

Methylamphetamine

[s.71AC of the Drugs, Poisons and Controlled Substances Act 1981]

15 years

[s.71AC of the Drugs, Poisons and Controlled Substances Act 1981]
3 ½ years’ imprisonment 12 months

3.
Trafficking in a drug of dependence – Cannabis L

[s.71AC of the Drugs, Poisons and Controlled Substances Act 1981]

15 years

[s.71AC of the Drugs, Poisons and Controlled Substances Act 1981]
2 years’ imprisonment 6 months

Summary Charge
Possess Prohibited Weapon

[s.5AA of the Control of Weapons Act 1990]

2 years

[s.5AA of the Control of Weapons Act 1990]

2 months’

imprisonment
Nil

Charges on Indictment	Offence	Maximum	Sentence	Cumulation
1.	Trafficking in a drug of dependence – Ecstasy [s.71AC of the Drugs, Poisons and Controlled Substances Act 1981]	15 Years [s.71AC of the Drugs, Poisons and Controlled Substances Act 1981]	3 ½ years’ imprisonment	Base
2.	Trafficking in a drug of dependence - Methylamphetamine [s.71AC of the Drugs, Poisons and Controlled Substances Act 1981]	15 years [s.71AC of the Drugs, Poisons and Controlled Substances Act 1981]	3 ½ years’ imprisonment	12 months
3.	Trafficking in a drug of dependence – Cannabis L [s.71AC of the Drugs, Poisons and Controlled Substances Act 1981]	15 years [s.71AC of the Drugs, Poisons and Controlled Substances Act 1981]	2 years’ imprisonment	6 months
Summary Charge	Possess Prohibited Weapon [s.5AA of the Control of Weapons Act 1990]	2 years [s.5AA of the Control of Weapons Act 1990]	2 months’ imprisonment	Nil

Total Effective Sentence:	5 years
Non-Parole Period:	3 ½ years
*Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:*	6 days
6AAA Statement: 6 years imprisonment with a non-parole period of 4 ½ years.
Other relevant orders: Forfeiture and Disposal Orders Forensic Procedure Sample Order

The applicant seeks leave to appeal against the sentence imposed on Charge 2 related to trafficking of methylamphetamine between 1 April 2013 and 12 April 2013. The offending included an initial episode in which it can be inferred the applicant supplied methylamphetamine to a co-accused, Dimitropoulos, in a quantity which is unknown. Dimitropoulos told the applicant in coded messages that he had some work for the applicant and the applicant told Dimitropoulos that he would ‘smash…

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 Eneasi Taumoefolau v The Queen

Details

AGLC: Eneasi Taumoefolau v The Queen [2015] VSCA 91
Case: [2015] VSCA 91
Decision Date: 6 May 2015

CaseChat Overview and Summary

Eneasi Taumoefolau sought leave to appeal against his sentence for trafficking in a drug of dependence. The case was heard by the High Court of Australia. The appellant was convicted and sentenced to five years' imprisonment with a non-parole period of three and a half years. The primary legal issue the court needed to address was whether the sentencing judge had erred by considering the gravity of trafficking in unsupplied drugs to be no less serious than that of trafficking in supplied drugs.

The court examined the sentencing principles and the circumstances of the case, focusing on whether the judge's approach was flawed. The appellant argued that the judge should not have considered the seriousness of trafficking in unsupplied drugs. However, the court found no arguable error in the judge's reasoning. It was determined that the judge's approach to sentencing, which took into account the broader context of the trafficking activity, was not erroneous. The court held that the judge had correctly applied the sentencing principles and that the appellant had not demonstrated any arguable error in the sentencing process.

As a result, the application for leave to appeal was refused. The High Court affirmed the original sentence imposed by the lower court, finding no basis for the appellant's claim of an arguable error in the sentencing decision. The appellant's application for special leave to appeal was dismissed, and the original sentence was upheld.

Orders