R v Karafilowski - [2007] VSCA 156

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 Solicitor for Public Prosecutions
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…

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 Karafilowski

Details

AGLC: R v Karafilowski [2007] VSCA 156
Case: [2007] VSCA 156
Decision Date: 15 August 2007

CaseChat Overview and Summary

In the case of R v Karafilowski, the appellant was convicted of trafficking in a commercial quantity of a drug of dependence and appealed against his sentence. The court of appeal was required to determine whether the trial judge erred in his assessment of the quantity of the drug trafficked by the appellant. The appellant had pleaded guilty to trafficking in at least 1.25 kilograms and no more than 2.5 kilograms of methylamphetamine. The prosecution conceded that the evidence only established the quantity of the drug trafficked by virtue of the plea of guilty. The trial judge had found that the appellant had trafficked well in excess of 2 kilograms of methylamphetamine.

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