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Kapkidis v The Queen

Kapkidis v The Queen

Case [2013] VSCA 35 1 March 2013

Appeal

Sentencing

Trafficking in a drug of dependence

Perjury

Attempt to pervert the course of justice

Criminal Procedure Act 2009 (Vic)

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0086

VASSILIOS KAPKIDIS	Applicant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P and REDLICH JA
WHERE HELD	MELBOURNE
DATE OF HEARING	10 September 2012
DATE OF JUDGMENT	1 March 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 35 (First Revision, 1 March 2013)
JUDGMENT APPEALED FROM	DPP v Kapkidis (Unreported, County Court of Victoria, Judge McInerney, 23 March 2012)

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CRIMINAL LAW – Appeal – Sentence – Trafficking in a drug of dependence in commercial quantity (2 indictments, 3 charges), perjury and attempt to pervert the course of justice – Total effective sentence of 7 years and 6 months’ imprisonment with non-parole period of 5 years – Sentencing judge erred in sentencing applicant as serious drug offender on second indictment – Whether different sentence should be imposed – Record to be corrected – Whether judge bound by understanding reached between parties about concurrency – Sentencing judge not constrained – Whether judge failed to have regard to low purity of drugs trafficked – Levels of purity not minuscule or extraordinarily low – Whether individual sentences and total effective sentence manifestly excessive – Applicant’s role in offending – One offence committed whilst on bail – Fresh evidence – Restraining order in respect of applicant’s property – Automatic forfeiture – Relevance to sentence – Whether property lawfully acquired – Whether consent to forfeiture evidence of remorse – Application for leave to appeal refused save for fresh evidence ground – Appeal dismissed – Criminal Procedure Act 2009 (Vic) s 281(1); Confiscation Act 1997 (Vic) ss 16, 22; Sentencing Act 1991 (Vic) s 5(2A)(ab), (e), s 5(2B).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M J Croucher SC with Ms C A Boston	Melasecca, Kelly & Zayler
For the Crown	Mr P B Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
REDLICH JA:

In December 2008, Victoria Police commenced ‘Operation Smutch’, an investigation into the applicant and his syndicate. Between 9 December 2008 and 30 April 2009, a covert operative, ‘George’, ordered methylamphetamine from the applicant on 11 occasions. Ten of the orders made by George and another transaction between the applicant and a Mr Singh constituted Charge 1 of the first indictment. The deliveries of these 11 orders were made by the applicant and his co-offender, Evangelos Noussis. A total of 1724.3 grams of methylamphetamine was sold to George. The 11^th transaction between the applicant and George, in which George purchased 501.8 grams of methylamphetamine, constitutes Charge 2 of the first indictment. These transactions are outlined below.

On 3 May 2009 the applicant took his black Mercedes 4WD to the Lamplighter Hotel in Chadstone, where he checked in with two women. He was the victim of an aggravated burglary in which his vehicle, his mobile phone and a large amount of methylamphetamine were stolen. He made a statement to police, parts of which were deliberately false, in which he claimed that the Mercedes was owned by another male (first indictment, Charge…

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 Kapkidis v The Queen

Details

AGLC: Kapkidis v The Queen [2013] VSCA 35
Case: [2013] VSCA 35
Decision Date: 1 March 2013

CaseChat Overview and Summary

The case of Kapkidis v The Queen involved the appellant, who was convicted and sentenced for trafficking in drugs of dependence in commercial quantities, perjury, and attempting to pervert the course of justice. The appellant was sentenced to a total effective term of imprisonment of 7 years and 6 months with a non-parole period of 5 years. The appeal focused on several aspects of the sentencing, including the classification of the appellant as a serious drug offender, the consideration of the drug purity levels, the appropriateness of the total sentence, and the relevance of a restraining order and automatic forfeiture of property to the sentencing decision. The appeal was heard by the Court of Appeal of Victoria.

The central legal issues in this case were whether the sentencing judge erred in classifying the appellant as a serious drug offender on the second indictment, whether the sentencing judge was constrained by an understanding reached between the parties regarding the concurrency of sentences, whether the sentencing judge failed to consider the low purity of the drugs, and whether the total effective sentence was manifestly excessive. Additionally, the appeal raised questions about the relevance of the restraining order and automatic forfeiture of property to the sentencing decision, and whether these factors indicated the appellant's remorse or lawful acquisition of the property.

The court found that the sentencing judge did not err in classifying the appellant as a serious drug offender, as the levels of purity of the drugs were not minuscule or extraordinarily low. The court also determined that the sentencing judge was not bound by any understanding between the parties regarding the concurrency of sentences. The court considered the appellant's role in the offending, including the fact that one offence was committed while on bail, and found that the total effective sentence was not manifestly excessive. The court further held that the restraining order and automatic forfeiture of property were relevant to the sentencing decision, as they demonstrated the appellant's lack of remorse and potentially indicated unlawful acquisition of the property.

The court ultimately dismissed the appeal, with the exception of the ground regarding fresh evidence. The application for leave to appeal was refused save for the fresh evidence ground. The court did not order a correction of the record or a different sentence, and the original sentence was upheld.

Orders