SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 96 of 2006
| THE QUEEN |
| v |
| LES KARAFILOWSKI |
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JUDGES: | VINCENT and NETTLE JJA and HABERSBERGER AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 22 March 2007 | |
DATE OF JUDGMENT: | 15 August 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 156 | |
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CRIMINAL LAW – Sentencing – Trafficking in a commercial quantity of a drug of dependence – Comments by sentencing judge regarding harmfulness of drug – R v Pidoto and O’Dea [2006] VSCA 185 – R v D’Aloia [2006] VSCA 273 – Whether judge erred in finding that the appellant had trafficked “well in excess of 2 kilograms of methylamphetamine” – Concession by prosecution that evidence only established, by virtue of plea of guilty, that the amount trafficked was at least 1.25 kilograms and not more than 2.5 kilograms –Appeal allowed – Appellant re-sentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J D McArdle QC | Ms A Cannon |
| For the Appellant | Mr S R Johns | Balmer & Associates |
VINCENT JA:
I agree that this appeal should be allowed and the appellant re-sentenced in the manner proposed and for the reasons advanced by Habersberger AJA in his judgment.
NETTLE JA:
I agree with Habersberger AJA that the appeal should be allowed and the appellant re-sentenced in the manner proposed by his Honour.
HABERSBERGER AJA:
On 10 March 2006 the appellant, Les Karafilowski, pleaded guilty before the County Court at Melbourne to one count of trafficking, between 31 May and 23 September 2004, in a drug of dependence, namely methylamphetamine, in a quantity that was not less than a commercial quantity applicable to that drug of dependence. After hearing a plea in mitigation of penalty, the learned judge, on 22 March 2006, sentenced the appellant to imprisonment for 6 years and 6 months, with a non-parole period of 4 years and 6 months.
Karafilowski was granted leave to appeal against sentence by a single judge of this Court on 29 September 2006.
The appellant was born in Greece in 1947. His father was killed during the Greek Civil War. His family fled to Poland when he was two years old. They emigrated to Australia in 1961. The appellant started working virtually straight away. He was employed in a variety of jobs. In 1970, he married. He has three adult children, two sons and a daughter, from that relationship. He was divorced in 1996. For some years Karafilowski was in a de facto relationship with his co-offender, Sonia Basic, with whom he had two sons who were aged eight and six at the time of sentencing. That relationship ended at the time of their arrests. There was evidence before the learned sentencing judge which showed that Karafilowski was suffering from a number of medical problems, including serious head injuries as a result of being assaulted in June 2003.
From about 1970 Karafilowski successfully ran a number of pizza shops. Following the sale of his last pizza shop in about 1985, he purchased…
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- AGLC
- R v Karafilowski [2007] VSCA 156
- Case
- [2007] VSCA 156
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court of appeal was whether the trial judge erred in his assessment of the quantity of the drug trafficked by the appellant. The court considered authorities on the appropriate approach to be taken when assessing the quantity of a drug of dependence trafficked, in particular, R v Pidoto and O’Dea [2006] VSCA 185 and R v D’Aloia [2006] VSCA 273. The court held that the trial judge had erred in his assessment of the quantity of the drug trafficked by the appellant. The trial judge had based his assessment on an incorrect factual finding and had failed to take into account the concession by the prosecution regarding the quantity of the drug trafficked. The court of appeal allowed the appeal and re-sentenced the appellant.
The court of appeal held that the trial judge had erred in his assessment of the quantity of the drug trafficked by the appellant. The trial judge had based his assessment on an incorrect factual finding and had failed to take into account the concession by the prosecution regarding the quantity of the drug trafficked. The court held that the appropriate approach to be taken when assessing the quantity of a drug of dependence trafficked was to consider all the evidence before the court and to make a finding of fact based on that evidence. The court of appeal re-sentenced the appellant to a term of imprisonment of 11 years, with a non-parole period of 7 years and 4 months. The court held that this sentence was appropriate having regard to the seriousness of the offence and the need to deter the appellant and others from engaging in similar conduct.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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