The Queen v Karam (Unreported Supreme Court of Victoria, King J, 24 May 2012 (date of conviction), 30 April 2013 (date of sentence))
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CRIMINAL LAW – Conviction – Conspiracy to possess 4.4 tonnes or more than 15 million tablets containing MDMA (ecstasy) imported from Europe in 2007 but seized before the conspirators could take possession of them – Wholesale value of tablets about $122 million – Applicant’s role to facilitate removal of container within which drugs concealed from docks – Interception by AFP of telephone conversation between co-conspirator and third party – Conversation not in furtherance of conspiracy and accordingly not admissible against applicant – Applicant sought to rely upon isolated passages in intercepted communication as supposedly exculpatory – Issue as to whether statements made were in fact exculpatory – Ruling by trial judge that evidence hearsay and inadmissible – Whether trial judge erred – No error established.
CRIMINAL LAW – Conviction – Trial judge permitted Crown to adduce evidence concerning applicant’s daily participation in legal proceedings throughout major part of the alleged conspiracy period – Whether evidence should have been excluded under s 137 of Evidence Act 2008 – Probative value of evidence not outweighed by any unfair prejudice to applicant.
CRIMINAL LAW – Conviction – Whether misdirection as to elements of conspiracy – No error established.
CRIMINAL LAW – Sentence – Applicant sentenced to 19 years’ imprisonment with non-parole period of 15 years – Whether trial judge erred in failing to afford mitigatory weight to applicant’s admissions and contribution to efficient conduct of trial – Whether sentence manifestly excessive – Whether undue disparity between applicant’s sentence and sentence imposed upon co-accused – No error established.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr C B Boyce SC with Dr M Fitzgerald
Dr Martine Marich & Associates
For the Crown
Mr B M Young QC
Commonwealth Director of Public Prosecutions
WEINBERG JA PRIEST JA BEACH JA:
Conviction, sentence and grounds of appeal
In May 2012, the applicant, who was tried together with John Higgs (‘Higgs’), Salvatore Agresta (‘Agresta’) and Pasquale Sergi (‘Sergi’), was convicted by a jury in the Supreme Court of conspiring with his co-accused, and with Pasquale Barbaro (‘Barbaro’), Saverio Zirilli (‘Zirilli’), Carmelo Falanga (‘Falanga’), Jan Visser (‘Visser’) and others, to possess an unlawfully imported border controlled drug, MDMA, in a commercial quantity.
On 30 April 2013, the applicant was sentenced to be imprisoned for 19 years, upon which a non-parole period of 15 years was fixed.
The applicant sought leave to appeal against both his conviction and sentence.
Ultimately, the applicant agitated three grounds as to conviction,[1] as follows:
1. The learned trial judge erred in law by refusing to admit, in the case of 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.
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AGLC
Karam v The Queen [2015] VSCA 50
Case
[2015] VSCA 50
Decision Date
CaseChat Overview and Summary
The case of Karam v The Queen involved a challenge by the applicant, Karam, against his conviction and sentence for conspiracy to possess a significant quantity of MDMA imported from Europe. The MDMA, amounting to 4.4 tonnes and approximately 15 million tablets, was seized before the conspirators could take possession, with the wholesale value of the drugs estimated at around $122 million. Karam’s role in the conspiracy was to facilitate the removal of the container housing the drugs from the docks. The primary legal issues revolved around the admissibility of intercepted communications, the relevance of the applicant’s participation in legal proceedings, the correctness of the trial judge’s instructions on the elements of conspiracy, and the appropriateness of the sentence imposed.
The High Court examined whether the trial judge erred in ruling that intercepted communications between co-conspirators were inadmissible as they were not in furtherance of the conspiracy and thus not admissible against Karam. The applicant attempted to use isolated passages from these intercepted communications as exculpatory evidence, but the trial judge deemed this evidence hearsay and inadmissible. The Court found no error in the trial judge’s ruling, affirming the exclusion of the contested evidence. Additionally, the Court considered whether the trial judge correctly admitted evidence of Karam’s daily participation in legal proceedings throughout the period of the alleged conspiracy. The Court held that the probative value of this evidence outweighed any potential prejudice, thus no error was found in its admission under section 137 of the Evidence Act 2008.
The Court also reviewed the trial judge’s instructions regarding the elements of conspiracy and found no error in the trial judge’s directions. Furthermore, the Court assessed the sentence of 19 years’ imprisonment with a non-parole period of 15 years, considering whether the trial judge erred by not giving sufficient weight to Karam’s admissions and his contribution to the efficient conduct of the trial. The Court also examined whether the sentence was manifestly excessive or disproportionate compared to the sentences of co-accused. Ultimately, the Court concluded that no error was established in the trial judge’s sentencing decision.
The Court dismissed Karam’s appeal, affirming his conviction and sentence. The judgment underscores the importance of strict adherence to the rules of evidence and the trial judge’s discretion in assessing the probative value of evidence and determining appropriate sentences.