Legal Research
Cases
Fenton v The King

Fenton v The King

Case [2025] VSCA 168 10 July 2025

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2025 0019

NATHAN FENTON	Applicant
v
THE KING	Respondent

---

JUDGES:	Emerton P and Boyce JA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 May 2025
DATE OF JUDGMENT:	10 July 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 168
JUDGMENT APPEALED FROM:	[2024] VCC 2023 (Judge Moglia)

---

CRIMINAL LAW – Appeal – Application for leave to appeal – Sentence – Trafficking drug of a dependence – Possession of counterfeit money – Whether judge erred in application of parity principle – Whether discrepancy between co-offenders’ sentences manifestly inadequate – Whether individual sentences manifestly excessive – Where judge took into account time spent at residential rehabilitation program while on bail – Whether appropriate weight given to established rehabilitation – Where offender had prior conviction for drug trafficking – Application for leave to appeal refused.

Akoka v The Queen [2017] VSCA 214, referred to.

---

Counsel
Applicant:		Mr W Barker
Respondent:		Ms K Hamill and Mr J Sutherland
Solicitors
Applicant:	Stephen Andrianakis & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
BOYCE JA:

Introduction

On 5 June 2024, the applicant pleaded guilty to one charge of trafficking in a drug of dependence, one charge of possessing counterfeit money, and related summary offences of failing to comply with a direction and dealing with property reasonably suspected to be proceeds of crime.[1]
[1]The applicant had initially made an application for a sentence indication on 30 May 2024, which was refused.
On 11 December 2024, the applicant was sentenced in the County Court of Victoria as follows:

Charge	Offence	Max Penalty	Sentence	Commencement/ Cumulation
1	Trafficking in a drug of dependence	15 years	1 year 10 months	Base
2	Possess counterfeit money (Cth)	10 years	1 year 1 month	Commences 9 months prior to completion of non-parole period
Related summary offences
RSO 4	Fail to comply with direction to assist	2 years	4 months	1 month
RSO 7	Deal with property reasonably suspected to be proceeds of crime	2 years	3 months	Nil
Total Effective Sentence (State): Non-Parole Period:		1 year 11 months’ imprisonment 1 year 2 months’ imprisonment
Total Effective Sentence (Cth): Non-Parole Period:		1 year 1 month imprisonment
Total Effective Sentence (State & Cth): Non-Parole Period:		1 year 11 months’ imprisonment (4 months of the Cth sentence to be served following completion of State non-parole period)
Pre-sentence Detention Declared:		108 days
Section 6AAA Statement:		Total Effective Sentence: 3 years 4 months’ Non-Parole Period: 2 years 1 month
Other Relevant Orders: Forfeiture of 3 x vacuum sealed bundles of AUD cash totalling 29,300 (counterfeit money)

The applicant was sentenced at the same time as his co-offenders, Thomas Cummins (‘Cummins’) and Callan Brilliant (‘Brilliant’). As the applicant’s contentions in this appeal are largely based on a comparison of the applicant’s sentence with that of Brilliant, it is convenient to set out Brilliant’s sentence in full:

Charge	Offence	Max Penalty	Sentence	Commencement/ Cumulation
1	Trafficking in a drug of dependence	15 years	2 years 2…

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 Fenton v The King

Details

AGLC: Fenton v The King [2025] VSCA 168
Case: [2025] VSCA 168
Decision Date: 10 July 2025

CaseChat Overview and Summary

The appellant, Mr. Fenton, appealed against the sentence imposed by the County Court for drug trafficking and possession of counterfeit currency. The appeal was heard in the Supreme Court of Victoria, where the appellant sought leave to appeal against the sentence. The central issues before the court were whether the judge erred in applying the parity principle, if the discrepancy between the sentences of co-offenders was manifestly inadequate, whether the individual sentences were manifestly excessive, and if the judge appropriately considered the appellant's time spent in a residential rehabilitation program while on bail.

The court found that the judge did not err in applying the parity principle, as the sentencing judge had adequately considered the unique circumstances of the appellant and his co-offenders. The court further held that the discrepancy between the sentences of the co-offenders was not manifestly inadequate, as each case was assessed individually, taking into account the specific circumstances of each offender. Regarding the appellant's time spent in the residential rehabilitation program, the court determined that the judge appropriately considered this factor as part of the appellant's established rehabilitation and weighed it against the seriousness of the offences committed. Additionally, the court held that the sentence imposed was not manifestly excessive, as it was proportionate to the gravity of the crimes, and the judge had taken into account the appellant's prior conviction for drug trafficking.

In conclusion, the Supreme Court of Victoria refused the appellant's application for leave to appeal against the sentence imposed by the County Court. The court held that the judge appropriately applied the principles of sentencing and took into account the relevant factors in determining the sentence, including the appellant's participation in a rehabilitation program and his prior criminal history. The court found no basis for the appellant's appeal and dismissed the application for leave to appeal.

Orders