Panayiotis Alexopoulos v The Queen - [2022] VSCA 145

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0019

PANAYIOTIS ALEXOPOULOS	Applicant
v
THE QUEEN	Respondent

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JUDGE:	MACAULAY JA
WHERE HELD:	Melbourne
DATE OF HEARING:	19 July 2022
DATE OF JUDGMENT:	27 July 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 145
JUDGMENT APPEALED FROM:	[2021] VCC 1801 (Judge Chettle)

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CRIMINAL LAW – Trafficking in a drug of dependence in not less than a commercial quantity – Applicant sentenced to 2 years 6 months’ imprisonment – Co-offender sentenced to 3 years’ imprisonment on same charge – Co-offender had significantly more extensive criminal history – Whether manifestly insufficient disparity between the two sentences – No reasonable prospect of obtaining leave to appeal – Extension of time to file leave to appeal refused.

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Counsel
Applicant:		Mr J Connolly
Respondent:		Mr CB Boyce QC
Solicitors
Applicant:	SLKQ Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MACAULAY JA:

Introduction

On 29 October 2020 the applicant sold Benjamin Giltinan 2.872 kg of 1,4-Butanediol (‘1,4-BDO’) in four plastic bottles for on-sale by Giltinan to buyers, ‘Mike’ and ‘Jimmy’. Unbeknown to both the applicant and Giltinan, Mike and Jimmy were covert police operatives.
On 12 November 2021 the applicant and Giltinan were each sentenced by Judge Chettle in the County Court after pleading guilty to a charge of trafficking in a drug of dependence (the 1,4-BDO) in not less than a commercial quantity,[1] together with other charges that they each committed independently from one another and to which they also pleaded guilty. On the charge that was common to each of them, involving the sale of the 1,4-BDO (‘the common trafficking charge’), the applicant was sentenced to 2 years and 6 months’ imprisonment and Giltinan was sentenced to 3 years’ imprisonment.
[1]Contrary to Drugs, Poisons, Controlled Substances Act 1981, s 71AA.
The applicant seeks leave to appeal on a single proposed ground, namely:
There was an error in the sentence first imposed on the charge on the indictment [relating to the sale of the 1,4-BDO] that resulted from the disparity between that sentence and the sentence imposed on Benjamin Giltinan for the same offence being manifestly insufficient.
The full list of charges and sentences for each offender is set out in tables below. In addition to the indictable charge relating to trafficking the 1,4-BDO, the applicant consented to the County Court hearing and determining three further summary offences. In Giltinan’s case, he was charged with six indictable offences, including the charge in relation to trafficking the 1,4-BDO, and he also consented to the County Court hearing and determining two further summary offences. Charge 1 in the table relating to the applicant and charge 3 in the table relating to Giltinan are the common trafficking charges.
The sentences imposed on the applicant were:

Offence	Max Penalty	Sentence	Cumulation
Indictable Charges
1	Trafficking in a drug of dependence — commercial quantity	25 years	2 years 6 months
Summary Charges
3	Committing an indictable offence whilst on bail	30 penalty units/3 months	1 month
5

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.

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Details

Case: [2022] VSCA 145
Decision Date: 27 July 2022

CaseChat Overview and Summary

Panayiotis Alexopoulos has brought an appeal against his sentence, arguing that the disparity between his sentence and that of his co-offender is so significant as to render it manifestly insufficient. The co-offender was sentenced to three years’ imprisonment for the same charge of trafficking in a drug of dependence in not less than a commercial quantity, while Alexopoulos was sentenced to two years and six months’ imprisonment. Alexopoulos argues that the disparity is unjust and that his sentence should be reviewed by the court.

The legal issues before the court were whether the disparity between the sentences was so significant as to render Alexopoulos’ sentence manifestly insufficient, and whether there was a reasonable prospect of obtaining leave to appeal. The court considered the principles of sentencing and the relevant authorities on the matter of disparity between sentences. The court also examined the relevant case law on the assessment of whether there is a reasonable prospect of obtaining leave to appeal.

The court found that the disparity between the sentences was not so significant as to render Alexopoulos’ sentence manifestly insufficient. The court noted that the sentencing judge had considered the relevant principles of sentencing and had taken into account the differing roles of the two offenders in the commission of the offence. The court also found that there was no reasonable prospect of obtaining leave to appeal, and therefore refused the extension of time to file leave to appeal. The court held that the sentence imposed on Alexopoulos was appropriate and just, and that there was no basis for the appeal to proceed.

The court did not make any further orders in relation to the appeal.

Orders