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Marchei v The Queen

Marchei v The Queen

Case [2021] VSCA 58 17 March 2021

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0098

DANIELE MARCHEI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	FERGUSON CJ and BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 March 2021
DATE OF JUDGMENT:	17 March 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 58
JUDGMENT APPEALED FROM:	[2019] VCC 2004 (Judge Allen)

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CRIMINAL LAW – Sentence – Appeal – Application for extension of time within which to seek leave to appeal – Trafficking drug of dependence in a commercial quantity – Sentence of 7 years on commercial quantity drug trafficking charge – Co-offender sentenced to 7 years for trafficking drug of dependence in a large commercial quantity – Parity – Whether principles of parity infringed – Different roles of offenders – Different personal circumstances – Different circumstances of offending – Parity complaint not reasonably arguable – Extension of time futile – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C K Wareham	Emma Turnbull Lawyers
For the Respondent	Mr P Bourke SC	Ms A Hogan, Solicitor for Public Prosecutions

FERGUSON CJ
BEACH JA:

The applicant pleaded guilty in the County Court to one charge of trafficking a drug of dependence in a commercial quantity, and one charge of being in possession of a traffickable quantity of firearms. On 25 November 2019, following a plea hearing, the applicant and five co-offenders, including one Chinh Khiem (‘Khiem’) were each sentenced in respect of the offences to which they had pleaded guilty. The applicant was sentenced as follows:

Charge

Offence

Maximum

Sentence

Cumulation

1.

Trafficking in a drug of dependence in a commercial quantity

25 years

7 years

Base

2.

Possessing a traffickable quantity of firearms

10 years

1 year

6 months

Total Effective Sentence:

7 years and 6 months

Non-parole Period:

4 years and 6 months

Pre-sentence Detention:

1001 days

Khiem was sentenced as follows:

Charge

Offence

Maximum

Sentence

1.

Trafficking in a drug of dependence in a large commercial quantity

Life

7 years

Total Effective Sentence:

7 years

Non-parole Period:

4 years

Pre-sentence Detention:

1001 days

On 18 May 2020, the applicant filed an application for an extension of time within which to file an application for leave to appeal against his sentence. The proposed ground of appeal which the applicant wishes to argue is:

1.That the applicant was sentenced on charge 1 to the same sentence that was imposed on Khiem (7 years) gave rise to sentencing error:
(a)the parity principle was engaged;
(b)Khiem’s offending warranted a higher sentence than did the applicant’s offending on charge 1;
(c)it was not reasonably open to sentence the applicant on charge 1 to the same sentence that was imposed on Khiem;
(d)that the applicant’s sentence on charge 1 was the same as Khiem’s sentence reflected error in the application of the parity principle, and produced a legitimate and justifiable sense of grievance in an objective observer.

The application for an extension of time is opposed by the respondent. The respondent submitted that the applicant’s delay (approximately 4 months),…

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 Marchei v The Queen

Details

AGLC: DANIELE Marchei v The Queen [2021] VSCA 58
Case: [2021] VSCA 58
Decision Date: 17 March 2021

CaseChat Overview and Summary

The appellant, Marchei, appealed against his sentence of seven years for trafficking in a commercial quantity of a drug of dependence. The respondent, The Queen, was the party against whom the appeal was made. The appeal was lodged beyond the statutory time limit, and Marchei sought an extension of time to appeal on the basis of parity. Marchei argued that the principles of parity were infringed because his co-offender, who was sentenced to seven years for trafficking in a large commercial quantity of a drug of dependence, had a lesser role in the offence and had different personal circumstances. The High Court of Australia heard the appeal.

The legal issues for the court to decide were whether Marchei's parity complaint was reasonably arguable, and whether an extension of time to appeal was futile. The court considered whether the different roles of the offenders, their personal circumstances, and the circumstances of the offending were sufficient to establish a parity complaint. The court also considered whether the extension of time was futile because the parity complaint was not reasonably arguable.

The court found that Marchei's parity complaint was not reasonably arguable because the differences in the roles of the offenders, their personal circumstances, and the circumstances of the offending were not significant enough to establish a parity complaint. The court also found that an extension of time to appeal would be futile because the parity complaint was not reasonably arguable. The application for an extension of time to appeal was therefore refused.

The court did not make any final orders as the application for an extension of time to appeal was refused.

Orders