Kolovouris v The Queen - [2017] VSCA 190

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0072

CHRISTOS KOLOVOURIS

THE QUEEN

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

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JUDGE:	SANTAMARIA JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	20 July 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 190
JUDGMENT APPEALED FROM:	R v Kolovouris (Unreported, County Court of Victoria, Judge Gamble, 23 February 2017)

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CRIMINAL LAW – Application for leave to appeal against sentence – One charge of trafficking in drug of dependence – One charge of possession of substance, material, documents or equipment for trafficking in drug of dependence – Sentence of 12 months’ imprisonment and 2 year community correction order – Effect of timing of plea of guilty on sentence – Where plea of guilty entered at third committal mention – Where relevant period of trafficking disputed – Whether total sentence manifestly excessive – Haddara v The Queen [2016] VSCA 168 considered – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
No appearances

SANTAMARIA JA:

The applicant, now aged 46, pleaded guilty to one charge of trafficking in a drug of dependence (methylamphetamine) and one charge of possession of substance, material, documents or equipment (phenethylamine) for trafficking in a drug of dependence.

The applicant was sentenced in the County Court as follows:

Charge on indictment Offence Maximum penalty Sentence Cumulation

1 Trafficking in a drug of dependence [Drugs Poisons and Controlled Substances Act 1981 s 71AC] 15 years’ imprisonment 12 months’ imprisonment and community correction order of 2 years -

2 Possession of substance, material, documents or equipment for trafficking in a drug of dependence [Drugs Poisons and Controlled Substances Act 1981 s 71A] 10 years’ imprisonment 12 months’ imprisonment and community correction order of 2 years -

Total effective sentence: Convicted and sentenced to an aggregate term of 12 months’ imprisonment and a community correction order for 2 years. In addition to the mandatory terms of the community correction order, the applicant was directed to undergo supervision and treatment and rehabilitation.

Non-parole period: -

Pre-sentence detention declaration: -

Section 6AAA Statement Two years and six months’ imprisonment with a non-parole period of 18 months’ imprisonment

Other relevant orders Disposal order; forensic sample order

The applicant now seeks leave to appeal his sentence.

Circumstances of the offending

In May 2015, police started an investigation into a Vietnamese criminal group which trafficked and manufactured methylamphetamine, among other drugs, in Melbourne. The investigation was extensive and included telephone intercepts, covert surveillance and searches of premises and vehicles.

Police alleged that Tran Thanh Du (‘Du’) was a member of that group and that, in the course of selling drugs to lower level drug traffickers, he sold methylamphetamine to the applicant. The applicant was not a direct target of the investigation; his detection and arrest was a ‘spin off’ from the investigation.

The sentencing judge found that the trafficking in which 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.

Continue reading Kolovouris v The Queen

Details

AGLC: Kolovouris v The Queen [2017] VSCA 190
Case: [2017] VSCA 190
Decision Date: 20 July 2017

CaseChat Overview and Summary

The matter before the court was an application by the appellant, Kolovouris, for leave to appeal against the sentence imposed by the County Court of Victoria. Kolovouris was convicted on one count of trafficking in a drug of dependence and one count of possession of a substance, material, documents, or equipment for trafficking in a drug of dependence. The court was tasked with determining whether the sentence of 12 months' imprisonment, to be served as a community correction order for two years, was manifestly excessive, particularly given the timing of Kolovouris's plea of guilty and the disputed duration of his involvement in the trafficking activities.

The central legal issue was whether the total sentence was manifestly excessive, particularly in light of the timing of Kolovouris's plea of guilty. The appellant argued that his plea of guilty at the third committal mention should have been taken into account as a mitigating factor. Additionally, the appellant contested the duration of his involvement in the trafficking activities, suggesting that it was less than what the court found, which would have been a relevant mitigating factor. The court had to assess these arguments against the principle that a sentence should not be manifestly excessive.

The court found that while the timing of the plea of guilty and the duration of the trafficking were relevant mitigating factors, they did not render the sentence manifestly excessive. The court referred to the decision in Haddara v The Queen [2016] VSCA 168, which emphasised that a sentence should not be set aside unless it is manifestly excessive. The court held that the sentence imposed was within the appropriate range, taking into account all relevant mitigating and aggravating factors. Therefore, the court refused leave to appeal against the sentence.

Orders