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Kneifati v The Queen

Kneifati v The Queen

Case [2012] VSCA 124 18 June 2012

Appeal

Sentencing

Trafficking

Unconscionable Conduct

Parity

Judicial Review

Criminal Law

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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:

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.

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

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

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.

As to Kneifati’s offending, the cocaine trafficking…

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 Kneifati v The Queen

Details

AGLC: Kneifati v The Queen [2012] VSCA 124
Case: [2012] VSCA 124
Decision Date: 18 June 2012

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.

Orders