Ovadia v The King - [2023] VSCA 211

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0053

DANIEL OVADIA	Applicant
v
THE KING	Respondent

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JUDGES:	NIALL and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	31 August 2023
DATE OF JUDGMENT:	6 September 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 211
JUDGMENT APPEALED FROM:	[2016] VCC 969 (Judge McInerney)

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CRIMINAL LAW – Application for leave to appeal against sentence – Resentencing following breach of a community correction order – Original sentence of a community correction order for four years and payment of fine for charge of possession of drug of dependence for purpose of trafficking – Resentenced to 18 months’ imprisonment – Whether sentence manifestly excessive – Application for leave to appeal granted and appeal allowed – Applicant resentenced to 8 months’ imprisonment.

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Counsel
Applicant:		Dr G Boas
Respondent:		Ms KB Hamill
Solicitors
Applicant:	Lewenberg & Lewenberg
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
KAYE JA:

In July 2016, the applicant pleaded guilty to four charges of possession of a drug of dependence contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981. The offending was alleged to have occurred in St Kilda on 1 June 2014. Following a plea presented on his behalf, the applicant was sentenced on charge 1 (possession of cocaine) to serve a community correction order (‘CCO’) for four years and he was fined $5,000. On each of the other three charges (possess cannabis, possess MDMA and possess methylamphetamine), he was ordered to serve a CCO for two years. There were conditions of each of the CCOs that the applicant: perform 200 hours of unpaid community work; undergo assessment and treatment for drug abuse or dependency as directed by the Regional Manager; and be under the supervision of a Community Corrections Officer.
On 8 March 2023, the applicant pleaded guilty to one charge of contravening the CCOs. After a plea presented on his behalf, he was re-sentenced as follows:

Charge on Indictment	Charge	Max Penalty	Sentence	Cumulation
1	Possess cocaine (for the purpose of trafficking)	5 years’ imprisonment	18 months’ imprisonment	Base sentence
2	Possess Methylamphetamine	1 year imprisonment	Nil
3	Possess MDMA (ecstasy)	1 year imprisonment	Nil
4	Possess cannabis	1 year imprisonment	Nil
Total Effective Sentence:		18 months’ imprisonment
Non-Parole Period:		12 months’ imprisonment
Pre-sentence Detention Declared:		17 days Renzella time
6AAA Declaration:		2 years and six months Non-parole period of 18 months
Other Relevant Orders: 1. Convicted and discharged on breach CCO

The applicant seeks leave to appeal against his sentence on one ground, namely:
1.The sentence is manifestly excessive considering:
a.the nature of the charges and maximum penalties at the time of offending;
b.the offending for which the Applicant was being re-sentenced occurred in 2014;
c.the 2016 sentence of a four year CCO was very substantially completed by the Applicant within the CCO period;
d.the Applicant had not offended for four years at the time of sentencing;
e.the mitigating factors presented on the plea, including the availability of principle…

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 Ovadia v The King

Details

AGLC: Ovadia v The King [2023] VSCA 211
Case: [2023] VSCA 211
Decision Date: 6 September 2023

CaseChat Overview and Summary

The case of Ovadia v The King involves an application for leave to appeal against a sentence imposed by the court. The applicant, Ovadia, was originally sentenced to a community correction order for four years and a fine for a drug trafficking offence. However, following a breach of the community correction order, the court imposed a new sentence of 18 months' imprisonment. Ovadia now seeks to appeal the new sentence, arguing that it is manifestly excessive.

The legal issues before the court were whether the sentence imposed was manifestly excessive and whether the applicant should be granted leave to appeal. The court considered the principles of sentencing, the nature of the offence, and the applicant's personal circumstances in determining whether the sentence was appropriate. The court also considered the principles of proportionality and whether the sentence imposed was consistent with sentences imposed for similar offences.

In allowing the appeal and re-sentencing the applicant to eight months' imprisonment, the court found that the original sentence of 18 months was manifestly excessive. The court considered that the offence was serious but did not warrant such a lengthy prison sentence. The court found that the original sentence did not reflect the appropriate balance between punishment and rehabilitation and did not take into account the applicant's personal circumstances. The court also found that the applicant's breach of the community correction order did not warrant such a severe penalty.

The final orders of the court were that the application for leave to appeal was granted, and the appeal was allowed. The applicant was re-sentenced to eight months' imprisonment, reflecting the appropriate balance between punishment and rehabilitation for the offence committed.

Orders