Kneifati v The Queen

Case [2012] VSCA 124


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0326

WALID KNEIFATI

Appellant

v

THE QUEEN

Respondent

S APCR 2011 0128

YOUSSEF TAHA

Applicant

v

THE QUEEN

Respondent

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JUDGES:

MAXWELL P, BUCHANAN and HANSEN JJA

WHERE HELD:

MELBOURNE

DATES OF HEARING:

16 February 2012

DATE OF JUDGMENT:

18 June 2012

MEDIUM NEUTRAL CITATION:

[2012] VSCA 124

JUDGMENTS APPEALED FROM:

DPP v Kneifati (Unreported, County Court of Victoria, Judge Taft, 8 September 2010)

DPP v Taha (Unreported, County Court of Victoria, Judge Taft, 30 May 2011)

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CRIMINAL LAW – Appeal – Sentence – Trafficking cocaine, trafficking large commercial quantity of MDMA, possess methylamphetamine – TES 8 y 6 m, NPP 5 y 9 m – Whether non-parole period manifestly excessive – Whether accorded with judge’s stated intention – No ‘usual’ non-parole period – Objective gravity of offending substantial – Appeal dismissed

CRIMINAL LAW – Appeal – Sentence – Trafficking commercial quantity of MDMA –Parity with co-offenders – Whether ‘somewhat lesser role’ adequately reflected in sentence – Extremely serious offence – Differentiation reasonably open to sentencing judge – Appeal dismissed

WORDS AND PHRASES – ‘Shorter than usual’ non-parole period – Unhelpful and apt to mislead.  

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APPEARANCES: Counsel Solicitors
For the Appellant Kneifati Mr M J Croucher SC with Ms C A Boston Garde-Wilson Lawyers
For the Applicant Taha Mr P G Priest QC with
Mr T Kassimatis
Dean Cole & Associates
For the Crown Mrs C M Quin Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
BUCHANAN JA
HANSEN JA:

  1. Walid Kneifati and Youssef Taha are cousins.  They are both aged 37.  Together with more than a dozen other people, including Tan Arslan, they were involved in a substantial drug trafficking operation.

  1. The three pleaded guilty to various offences and were sentenced by the same judge – on different dates[1] and after separate pleas in mitigation – as summarised in the following table:

    [1]Kneifati on 8 September 2010, Arslan on 10 December 2010, and Taha on 30 May 2011. 

OFFENCE MAX PENALTY KNEIFATI TAHA ARSLAN
Traffick cocaine 15y 3y (18m cumulated)
Traffick large commercial quantity of MDMA Life 7y (Base) 6y 8m 7y (21m cumulated)
Possess methylamphetamine 1y and/or fine of 30 penalty units 1m (concurrent)
Traffick large commercial quantity of cocaine Life 7y 6m (Base)
Traffick commercial quantity of methylamphetamine 15y 3y (15m cumulated)
Total Effective Sentence --- 8y 6m 6y 8m 10y 6m
Non-Parole Period --- 5y 9m 4y 4m 6y 9m
Pecuniary penalty order --- $31,500 $31,500 $95,500
  1. Kneifati’s appeal concerns his non-parole period of 5 years and 9 months.  Taha’s application for leave to appeal raises the question of parity as between himself, Kneifati and Arslan.

The facts  

  1. In July 2007 a police investigation identified a syndicate involved in the trafficking of large quantities of MDMA (ecstasy), cocaine, methylamphetamine and cannabis.  Intercepted telephone calls revealed that Arslan was purchasing cocaine and MDMA from Kneifati, and that Taha was involved with Kneifati in supplying MDMA to Arslan.

  1. As to Kneifati’s offending, the cocaine trafficking…

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Kneifati v The Queen [2012] VSCA 124
Case
[2012] VSCA 124
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CaseChat Overview and Summary

In the case of Kneifati v The Queen, the appellant sought to appeal his sentence, which was imposed after he pleaded guilty to trafficking a commercial quantity of cocaine, trafficking a large commercial quantity of MDMA, and possessing methylamphetamine. The appeal was heard in the High Court of Australia. The central issue before the court was whether the non-parole period of the sentence was manifestly excessive, given the judge's stated intention, and whether it adequately reflected the appellant's lesser role in the offences committed.

The court examined the sentencing principles relevant to the case, considering the objective gravity of the offending and the need for differentiation in sentencing between co-offenders. The appellant argued that the non-parole period was shorter than usual, a term the court found unhelpful and potentially misleading. The court held that the non-parole period was not manifestly excessive and accorded with the judge's stated intention. The objective gravity of the offending was substantial, and it was reasonably open to the sentencing judge to differentiate the sentences based on the roles of the co-offenders. The appeal was ultimately dismissed, with the court affirming the appropriateness of the sentence imposed.

The High Court further noted that the concept of a 'shorter than usual' non-parole period could be misleading and unhelpful in the context of sentencing. The court emphasised the importance of considering the specific circumstances of each case, including the objective gravity of the offending and the roles of co-offenders. The decision underscores the need for sentencing judges to carefully articulate their reasoning and ensure that sentences are proportionate and reflect the unique circumstances of each offender.

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

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