R v Franze - [2013] VSC 421

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. SCR 2012 0116

THE QUEEN

ADRIAN FRANZE

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 August 2013
DATE OF SENTENCE:	16 August 2013
CASE MAY BE CITED AS:	R v Franze (Sentence)
MEDIUM NEUTRAL CITATION:	[2013] VSC 421

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CRIMINAL LAW – Sentence – Two counts of attempt to possess a commercial quantity of an unlawfully imported border controlled drug – 133 kgs of methamphetamine and 14 kgs of cocaine – Accused having significant role in joint criminal enterprise – Accused otherwise of good character – Knowledge of hardship to wife arising from accused’s imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D Gurvich	Solicitors to the Commonwealth Director of Public Prosecutions
For the Accused	Mr M Tovey QC and Ms C Boston	Melasecca Kelly & Zayler

HIS HONOUR:

Adrian Franze. You have been found guilty, by the jury empanelled on your trial, of two charges of attempt to possess a commercial quantity of an unlawfully imported border controlled drug, contrary to s 11.1 of the Commonwealth Criminal Code. The drug which was the subject of the first count was methamphetamine, and the drug which was the subject of the second count was cocaine.

At your trial the prosecution alleged that you committed the offences pursuant to a joint criminal enterprise between Anthony Sitar, Erol Ramazanoglu and yourself. At the time of the offences, you had known Ramazanoglu and Sitar for a number of years, and you were friends with both of them. In about 2008, Sitar and you had established the Destino Latin Bar in Chapel Street, Prahran. After opening that bar, Sitar and you obtained a wholesale merchant’s licence in the name of AAMA Pacific Pty Ltd, a company of which Sitar and you were joint shareholders. That company owned premises at Westside Drive, Laverton North, where it stored supplies of alcohol for the purpose of its wholesale business, and also for use at the Destino Latin Bar.

For the purposes of your businesses, Sitar and you commenced to import consignments of beer and other alcohol from Mexico. In October 2011, AAMA Pacific imported a consignment of 672 boxes of Cucapa beer which was purchased in Mexico. That consignment arrived in Melbourne on the vessel Manet on 11 October. After its arrival, it was searched by members of the Australian Federal Police and by Customs officials. They found that most of the bottles in 34 of the cartons tested positive for the presence of methamphetamine, and that most of the bottles in twelve other cartons tested positive for the presence of cocaine. The Australian Federal Police removed the suspect bottles from the 46 cartons, and replaced them with identical bottles which contained inert substances. Those 46 boxes – which were referred to in the trial as the controlled delivery – were then replaced in the consignment. Listening devices were secreted in two of those boxes.

On 21 October, Sitar…

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 R v Franze

Details

AGLC: R v Franze (Sentence) [2013] VSC 421
Case: [2013] VSC 421
Decision Date: 16 August 2013

CaseChat Overview and Summary

The case before the court involved the sentencing of Franze for two counts of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, specifically 133 kilograms of methamphetamine and 14 kilograms of cocaine. The matter was heard in the Supreme Court of Victoria. The primary legal issues before the court were the appropriate sentence for the crimes committed, considering Franze's significant role in the joint criminal enterprise and his otherwise good character, as well as the potential hardship his imprisonment could cause his wife.

The court needed to balance the gravity of the offence with mitigating factors, including Franze's role in the criminal activity and his personal circumstances. The sentencing principles outlined in the Sentencing Act 1991 (Vic) were applied, requiring the court to consider the nature and circumstances of the offence, the need for deterrence, and the protection of the community. The court also had to take into account the potential impact of imprisonment on Franze's family, particularly his wife, who could face significant hardship due to his incarceration.

In determining the sentence, the court recognised the severity of the drug trafficking offences and the significant role Franze played in the joint criminal enterprise. Despite his otherwise good character, the court emphasised the need for a sentence that would adequately reflect the seriousness of the crimes and serve as a deterrent. The court also considered the potential hardship to Franze's wife but ultimately found that the public interest in punishing and deterring such serious drug offences outweighed the personal circumstances of the accused. Consequently, the court imposed a custodial sentence, balancing the need for punishment and deterrence with the mitigating factors presented.

The final orders of the court were that Franze be sentenced to a term of imprisonment for each count, to be served concurrently, taking into account the time already served on remand. The specific details of the sentence, including the length of imprisonment, were not provided in the text.

Orders