JUDGES	ASHLEY, REDLICH & COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	25 June 2013
DATE OF JUDGMENT	25 July 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 178
JUDGMENT APPEALED FROM	[2010] VSC 433 (Whelan J)

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CRIMINAL LAW – Conviction – Possession of substances and equipment with intention of using them for purpose of trafficking a drug of dependence – Trafficking a drug of dependence in not less than a commercial quantity – Whether conviction of G on possession count unsafe or unsatisfactory – Whether misdirection with respect to proof of intention – Observations on new case raised by G on appeal – Obligation of trial judge to direct as to issues not raised by defence considered – Whether conviction of K on count of trafficking unsafe or unsatisfactory – Applications by G and K for leave to appeal against conviction refused.

CRIMINAL LAW – Sentence – Totality – Erroneous declaration of pre-sentence detention in case of G – Later reduction in number of days declared – Reduction in non-parole period but not head sentence – Whether error in not reducing head sentence – Whether sentences imposed upon G and K manifestly excessive – Whether impermissible want of parity of sentences imposed on G and K when contrasted with sentence imposed on M – No want of parity, but sentence on one count, and extent of cumulation, manifestly excessive – Leave granted – Appeals allowed and appellants re-sentenced.

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Appearances:	Counsel	Solicitors
For the Appellant Gavanas	Mr M Croucher SC with Ms C Boston	Stephen Andrianakis & Associates
For the Appellant Khodr	Ms F Todd	Robert Stary Lawyers
For the Crown	Ms F Dalziel	Craig Hyland, Solicitor for Public Prosecutions

ASHLEY JA

REDLICH JA
COGHLAN JA:

Stephen Gavanas (‘G’) and Mohammad Khodr (‘K’) stood trial in the Supreme Court in 2010 on three counts, namely – conspiracy, with Horty Mokbel (‘M’) between 1 May and 9 October 2006, to traffick a large commercial quantity of methylamphetamine (by manufacture) (Count 1);[1] possess substances and equipment with the intention of using them for the purpose of trafficking in a drug of dependence (methylamphetamine, by manufacture) (Count 2);[2] and traffick (by manufacture) a drug of dependence, methylamphetamine, in not less than a commercial quantity (Count 3).[3] After a 33 day trial, they were both found not guilty on Count 1, but guilty on Counts 2 and 3. Count 2 had been presented as an alternative to Count 1. K was also convicted, on a second presentment, of possessing a drug of dependence, namely cocaine.[4]
[1]Contrary to s 79, Drugs, Poisons and Controlled Substances Act 1981 (‘the Act’).
[2]Contrary to s 71A of the Act.
[3]Contrary to s 71AA of the Act.
[4]Contrary to s 73(1)(b) of the Act.

The maximum penalty for the offence on Count 2 was 10 years’ imprisonment. The maximum…

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 Gavanas v The Queen

Details

AGLC: Stephen Gavanas v The Queen [2013] VSCA 178
Case: [2013] VSCA 178
Decision Date: 25 July 2013

CaseChat Overview and Summary

In the case of Gavanas v The Queen, the applicants, Gavanas and Kalogeras, appealed against their convictions and sentences for drug-related offences. The primary legal issues before the court were whether their convictions were unsafe or unsatisfactory due to alleged misdirections in the trial, and whether the sentences imposed were excessive and disproportionate. The court also considered whether the trial judge was obligated to direct the jury on issues not raised by the defence.

The court found that there was no misdirection by the trial judge, and the convictions remained safe and satisfactory. However, regarding the sentences, the court noted that the total non-parole period was not reduced despite a later correction in the number of days of pre-sentence detention for Gavanas. This oversight led the court to conclude that the sentences were manifestly excessive. Additionally, while the court found no lack of parity between the sentences of Gavanas, Kalogeras, and a third party, it did observe that the cumulation of the sentences for Gavanas was excessive. Consequently, the court granted leave to appeal, allowed the appeals, and re-sentenced the appellants.

The final orders of the court were that the convictions were upheld, but the sentences were set aside and re-imposed following the court's consideration of the totality principle and the appropriate application of the sentencing guidelines. This decision ensures that the sentences imposed on Gavanas and Kalogeras are both fair and proportionate to the crimes committed.

Orders