John Falzon v The Queen - [2013] VSCA 246

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0049

JOHN FALZON	Applicant
	v
THE QUEEN	Respondent

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JUDGES	BUCHANAN AP and OSBORN and SANTAMARIA JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	11 September 2013
DATE OF JUDGMENT	11 September 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 246
JUDGMENT APPEALED FROM	The Queen v Falzon (Unreported, County Court of Victoria, Judge Barnett, 26 June 2008)

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CRIMINAL LAW – Application for leave to appeal sentence – Sentencing – Trafficking in a drug of dependence – Total effective sentence of 11 years’ imprisonment with a non-parole period of eight years – Co-offender sentenced to a total effective sentence of six years’ imprisonment with a non-parole period of four years – Parity – Leave granted – Appeal dismissed – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P F Tehan QC	Robert Stary Lawyers
For the Respondent	Mr F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN AP:

I will ask Osborn JA to deliver the first judgment.

OSBORN JA:

On 28 May 2008 the applicant pleaded guilty to trafficking in a drug of dependence, namely Cannabis L, in a quantity not less than a large commercial quantity.[1]
[1]Contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981.

On 26 June 2008 the applicant was sentenced by Judge Barnett to 11 years’ imprisonment with a non-parole period of eight years.[2]
[2]The Queen v Falzon (Unreported, County Court of Victoria, Judge Barnett, 26 June 2008) (‘Sentencing Remarks’).

Since 1986 the applicant has merited the description of a large-scale drug trafficker. In 1995 he was sentenced in the County Court to a total effective sentence of seven years’ imprisonment with a non-parole period of five years in respect of trafficking in cannabis, amphetamine and heroin between 1986 and 1992. That sentence was upheld in the Court of Appeal on 15 February 1996.

After completion of his sentence the applicant at some point recommenced drug trafficking and between June 2005 and November 2005 his activities were the target of a police undercover operation known as ‘Operation Tabby’. The investigation showed that the applicant was conducting a business involving the regular purchase of cannabis plants and dried cannabis for the purposes of resale. He used a number of false names and telephone numbers and attempted to conceal his trafficking by speaking in code to his customers on the telephone.

The cannabis was obtained from two different suppliers, Malcolm Brown-Kerr and Paul Reivers. The resale operations were conducted by the applicant but on occasion he arranged for his suppliers to make deliveries. The sales were made to a number of drug dealers who were also charged as a result of Operation Tabby.

They were also made to undercover police in the course of the operation. The quantity of drugs involved in the operation was put in issue on the plea. After hearing evidence from the informant as to the conduct of the applicant’s business the sentencing…

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 John Falzon v The Queen

Details

AGLC: Falzon v The Queen [2013] VSCA 246
Case: [2013] VSCA 246
Decision Date: 11 September 2013

CaseChat Overview and Summary

The appellant, John Falzon, was convicted of trafficking in a drug of dependence and was sentenced to a total effective term of 11 years imprisonment, with a non-parole period of eight years. The respondent, The Queen, was represented in the High Court of Australia, which was asked to determine whether leave to appeal the sentence should be granted. The co-offender, who was involved in the same offence, received a total effective sentence of six years with a non-parole period of four years. The central issue was whether the disparity between the sentences imposed on the appellant and the co-offender warranted leave to appeal.

The court examined the principle of parity in sentencing, which requires that similar offences be treated similarly, unless there are justifiable reasons for differentiation. The appellant argued that the disparity in sentences was unjustifiable and breached the principle of parity. The court considered the nature and extent of each offender's involvement in the crime, the role played by each in the commission of the offence, and the degree of culpability. The appellant's argument focused on the lack of a significant difference in the roles played by the appellant and the co-offender, and the minimal difference in the sentences imposed. However, the court found that there were justifiable reasons for the difference in sentences, primarily due to the appellant's higher degree of culpability.

After thorough analysis, the court granted leave to appeal, acknowledging that the disparity in sentences warranted further examination. However, upon hearing the appeal, the court dismissed it, concluding that there was no point of principle that necessitated interference with the primary judge's sentencing discretion. The court found that the disparity in sentences was justified by the differences in the appellant's and the co-offender's roles in the offence and the appellant's higher degree of culpability.

The final orders of the court were to grant leave to appeal but to dismiss the appeal, leaving the original sentence intact. The court's decision emphasised the importance of considering the specific circumstances of each case when assessing the appropriateness of a sentence, and reinforced the principle that the primary judge's discretion in sentencing should not be lightly interfered with.

Orders