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Failla v The King

Failla v The King

Case [2025] VSCA 132 13 June 2025

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0029

ANTHONY FAILLA	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON P and BOYCE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 May 2025
DATE OF JUDGMENT:	13 June 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 132
JUDGMENT APPEALED FROM:	DPP v Failla [2023] VCC 2386 (Judge Parrish)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Cultivating a commercial quantity of narcotic plant (cannabis) – Whether sentencing judge misapprehended weight of cannabis – Whether sentence imposed manifestly excessive – Offender leased property used to cultivate cannabis – Judge misapprehended weight – No different sentence imposed – Sentence not wholly outside permissible range – Leave granted – Appeal dismissed.

Osman v The Queen [2021] VSCA 176, followed; Nguyen v The Queen (2016) 311 FLR 289; Nguyen v The Queen [2017] VSCA 286; Nguyen v The Queen [2018] VSCA 322; Nguyen v The Queen [2019] VSCA 134; Vocaj v The King [2023] VSCA 242; Dang v The Queen [2020] VSCA 24; Le v The Queen [2021] VSCA 220; Nguyen v The Queen (2021) 301 A Crim R 1, referred to.

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Counsel
Applicants:		Mr J Gullaci SC
Respondent:		Ms K Hamill
Solicitors
Applicants:	Stary Norton Halphen
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
BOYCE JA:

Introduction

On 19 December 2023, the applicant was sentenced in the County Court. He was then aged 46. He had pleaded guilty to the following offences on indictment, namely, cultivation of cannabis in not less than a commercial quantity, theft and knowingly dealing with the proceeds of crime. This offending took place in October 2021. The applicant was sentenced as follows:

Charge

Offence

Maximum

Sentence

Cumulation

Indictment M12071883

1 Cultivation of narcotic plants — commercial quantity[1] 25 years 3 years and 6 months Base

2 Theft[2] 10 years 6 months 2 months

3 Knowingly dealing with proceeds of crime[3] 15 years 8 months 4 months

Total Effective Sentence: 4 years’ imprisonment

Non-Parole Period: 2 years and 4 months

Pre-Sentence Detention Declaration pursuant to s 18(1) of the Sentencing Act 1991: 19 days

Section 6AAA Statement: 5 years’ imprisonment

Other Relevant Orders: Forfeiture order and disposal order
[1]Contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981 (‘Drugs Act’).
[2]Contrary to s 74(1) of the Crimes Act 1958.
[3]Contrary to s 194(2) of the Crimes Act 1958.

The applicant applies for leave to appeal against sentence. His proposed grounds of appeal are as follows:
Ground 1 – In passing sentence for charge 1, the Sentencing Judge erred by finding that the weight of cannabis involved was 301.7 kg.
Ground 2 – The individual sentences imposed on charge 1 and 2, the orders for cumulation on charge 2 and 3, the total effective sentence and the non‑parole period are manifestly excessive.
Particulars:
The following matters are relied on:
a) The role played by the offender;
b) The…

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 Failla v The King

Details

AGLC: Anthony Failla v The King [2025] VSCA 132
Case: [2025] VSCA 132
Decision Date: 13 June 2025

CaseChat Overview and Summary

In the case of Failla v The King, the applicant sought leave to appeal against his sentence for cultivating a commercial quantity of cannabis. The decision was made by the Supreme Court of Victoria, Court of Appeal. The central dispute was whether the sentencing judge had misapprehended the weight of the cannabis cultivated and whether the imposed sentence was manifestly excessive.

The primary legal issues before the court involved assessing whether the sentencing judge had erred in understanding the weight of the cannabis and if this error had influenced the sentence. The court also had to determine whether the sentence was within the permissible range, considering the misapprehension, and if it was manifestly excessive. The applicant argued that the sentence should be reduced due to the miscalculation of the cannabis weight, while the prosecution maintained that any error did not significantly impact the sentence.

The court found that the sentencing judge had indeed misapprehended the weight of the cannabis. However, this misapprehension did not result in a different sentence being imposed. The court examined the sentence's proportionality and concluded that it was not wholly outside the permissible range. The applicant's sentence was deemed appropriate, considering the totality of the circumstances. As a result, leave to appeal was granted, but the appeal itself was dismissed. The court referenced several precedent cases to support its findings, including Osman v The Queen, Dang v The Queen, and various Nguyen v The Queen decisions, among others.

Orders