JUDGES:	WHELAN, SANTAMARIA and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 February 2018
DATE OF JUDGMENT:	20 February 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 26
JUDGMENT APPEALED FROM:	DPP v Mourkakos (Unreported, County Court of Victoria, Judge Lyon, 13 February 2017 (Conviction); 3 March 2017 (Sentence))

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CRIMINAL LAW – Appeal against conviction – Drug offences – Possession charges alternatives to trafficking charges – Whether judge’s directions impermissibly fettered jury’s freedom to order its deliberations – No error established – Stanton v The Queen (2003) 198 ALR 41 applied.

CRIMINAL LAW – Appeal against conviction – Possession of firearms while prohibited person – Shotgun and pistol in same gun bag – Applicant found guilty of possession of shotgun but not pistol – Whether verdicts inconsistent and irreconcilable – No error established – Mackenzie v The Queen (1996) 190 CLR 348 applied.

CRIMINAL LAW – Appeal against sentence – Whether judge erred by using fact that applicant was prepared to ‘prey on others’ despite experience as a drug addict adversely to him – Whether judge erred in failing to take into account punitive element of applicant’s stay at residential rehabilitation facility while on bail – No error established – Akoka v The Queen [2017] VSCA 214 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis QC	Grigor Lawyers
For the Respondent	Mr C B Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

WHELAN JA
SANTAMARIA JA
KYROU JA:

Introduction and summary

The applicant was charged with the offences set out in the table below. Following a trial in the County Court, on 13 February 2017, the jury returned the verdicts set out in that table. On 3 March 2017, he was sentenced as set out in that table.[1]
[1]DPP v Mourkakos (Unreported, County Court of Victoria, 3 March 2017, Judge Lyon) (‘Sentencing remarks’).

Charge

Offence

Verdict

Maximum

Sentence

Cumulation

1 Trafficking in a drug of dependence (Methylamphetamine) (‘ice’) – Commercial quantity [s 71AA Drugs, Poisons and Controlled Substances Act 1981 (‘DPCSA’)] G 25 y 55 m Base

2 Possession of a drug of dependence (ice) [s 73(1) DPCSA] -

3 Trafficking in a drug of dependence (MDMA) [s 71AC DPCSA] NG

4 Possession of a drug of dependence (MDMA) G 5 y 2 m 1 m

5 Trafficking in a drug of dependence (cocaine) NG

6 Possession of a drug of dependence (cocaine) G 1 y[2] 7 days -

7 Trafficking in a drug of dependence (cannabis L) G 15 y 4 m 1 m

8 Possession of a drug of dependence (cannabis L) -

9 Possession of a firearm whilst being a prohibited person (pistol) [s 5(1) Firearms Act 1996] NG

10 Possession of a firearm whilst being a prohibited person (shotgun) G
10 y
18 m 9 m

11 Possession of a firearm whilst being a prohibited person (pistol)

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 Mourkakos v R

Details

AGLC: Mourkakos v R [2018] VSCA 26
Case: [2018] VSCA 26
Decision Date: 20 February 2018

CaseChat Overview and Summary

Mourkakos appealed against his conviction and sentence for drug offences and possession of firearms while being a prohibited person. The appeal focused on the jury's directions, the consistency of the verdicts, and the sentencing considerations. The High Court considered the appeal on three grounds: whether the judge's directions to the jury were improper, whether the verdicts were inconsistent, and whether the judge erred in sentencing.

The court found no error in the judge's directions to the jury, holding that they did not fettered the jury's freedom to determine its deliberations. The court applied the principles from Stanton v The Queen and concluded that the judge's directions were within acceptable bounds and did not prejudice the applicant's right to a fair trial. Regarding the verdicts, the court held that there was no inconsistency or irreconcilability in the jury's decision to convict the applicant of possessing a shotgun but not a pistol. The court applied the principles from Mackenzie v The Queen and found that the verdicts were consistent and could be upheld. Finally, the court held that the judge did not err in sentencing. The court found that the judge's consideration of the applicant's propensity to prey on others and his stay at a residential rehabilitation facility was proper and did not constitute an error. The court applied the principles from Akoka v The Queen and held that the sentence was appropriate.

The court dismissed the appeal, affirming the conviction and sentence of the applicant. The court held that the judge's directions, the consistency of the verdicts, and the sentencing considerations were all proper and did not establish any error. The applicant's appeal was therefore unsuccessful, and the original conviction and sentence were upheld.

Orders