Obian v The King

[2023] VSCA 18

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0164

SAER OBIAN	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, NIALL and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 October 2022
DATE OF JUDGMENT:	16 February 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 18
JUDGMENT APPEALED FROM:	[2020] VCC 915 (Judge Trapnell)

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of three charges of trafficking in a drug of dependence, 1,4-butanediol (‘1,4-BD’) – Applicant gave evidence in his defence – Prosecution permitted to re-open case and introduce rebuttal evidence before cross-examination of the applicant completed – Admission of rebuttal evidence did not amount to a miscarriage of justice – Prosecution could not have reasonably foreseen evidence given by applicant – Extension of time in which to apply for leave to appeal granted, but leave to appeal refused.

CRIMINAL LAW – Appeal – Conviction – Trial judge refused defence counsel leave to confer with applicant during cross-examination – Whether refusal was an irregularity in the trial resulting in a substantial miscarriage of justice – Extension of time in which to apply for leave to appeal granted, but leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Three charges of trafficking in a drug of dependence in not less than a commercial quantity – Quantities of 1,4-BD between 400 and 8,000 times commercial quantity threshold – Maximum penalty 25 years’ imprisonment – Applicant directing mind of sophisticated operation with sole motivation for financial gain – Total effective sentence 17 years and 10 months’ imprisonment with non-parole period of 12 years and 10 months – Whether sentence manifestly excessive – Mitigating factors of youth, no prior convictions, delay and COVID-19 burden of imprisonment – Totality – Co-offender who played less substantial role and had benefit of other mitigatory factors sentenced to 8 years’ imprisonment – Total effective sentence not wholly outside range open to trial judge – Sentence did not breach principle of parity – Extension of time in which to apply for leave to appeal sentence refused.

Criminal Procedure Act 2009, s 233; Shaw v The Queen (1952) 85 CLR 365; Killick v The Queen (1981) 147 CLR 565; Lawrence v The Queen (1981) 38 ALR 1; R v Chin (1985) 157 CLR 671; Alfarsi (a pseudonym) v The Queen [2021] VSCA 283, considered.

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Counsel
Applicant:		Mr CT Carr SC with Ms CA Boston
Respondent:		Mr CB Boyce KC with Mr GB Buchhorn
Solicitors
Applicant:	Milides Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

Introduction

1. After a trial of almost five weeks’ duration, on 24 September 2019 a jury in the County Court found the applicant guilty of three charges of trafficking in a drug of dependence, 1,4-butanediol (‘1,4-BD’), in not less than a commercial quantity.[1] He was subsequently imprisoned.[2]

   [1]Drugs, Poisons and Controlled Substances Act 1981, s 71AA. The maximum penalty is 25 years’ imprisonment.

   [2]Following a plea in mitigation, on…