R v Orphanides - [2002] VSCA 86

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 120 of 2001

THE QUEEN
	v.
SOFOCLI ORPHANIDES

---

JUDGES:	PHILLIPS, BATT and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	30 April and 1 May 2002
DATE OF JUDGMENT:	13 June 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 86

---

CRIMINAL LAW – Sentencing – Drug trafficking – Re-offending while on parole – No action yet by Parole Board – Whether sentence manifestly excessive – Congenital illness of young child - Assistance to authorities – Whether exceptional hardship militating against incarceration – Whether “exceptional circumstances” militating against cumulation – Application to lead further evidence - Totality – Sentencing Act 1991 s.16(3B).

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms R. Carlin	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr M.J. Croucher	Haines & Polites

PHILLIPS, J.:

The applicant, who was born on 23 August 1961, is now 40 years of age. He seeks leave to appeal against sentence imposed in the County Court on 11 May 2001 after he pleaded guilty to seven counts involving drugs of dependence. Counts 1 to 5 were of trafficking in diacetylmorphine (heroin) on five specific occasions, on 13, 16, 19, 21 and 22 January 1998 respectively. There was no allegation of trafficking between dates. Counts 6 and 7 were of possession on 5 May 1998, the first of pseudoephedrine and the second of methylamphetamine.

When pleading guilty to all seven counts, the applicant admitted two prior convictions for trafficking in a drug of dependence and one prior conviction for possession of a drug of dependence, offences for which he had been sentenced by his Honour Judge Hart in the County Court on 14 June 1996. His Honour's sentencing remarks were before the judge on this occasion and they describe trafficking in heroin over a number of months from January to July 1995 and also in amphetamine on 1 June 1995. The applicant was at that time 33 years old, a married man with two children. The offending came to light by virtue of an undercover operation by the police which led to a number of persons being prosecuted, including the applicant and his wife, they having acted, it appears, as suppliers to a number of "sub-dealers" who, for a time at least, worked out of the applicant's home - to his wife's displeasure, it was said. For the offending then charged, the applicant was sentenced on 14 June 1996 to a total effective term of three and a half years’ imprisonment, with a non-parole period of 18 months. Because there was pre-sentence detention to be reckoned of 329 days, the applicant was released from gaol early in 1997 and he was still on parole at the time of the present offending, in January and May 1998.

The maximum penalty for trafficking in a drug of dependence, contrary to s.71 of the Drugs, Poisons and Controlled Substances Act 1981 as it stood at the relevant time, was 15 years’ imprisonment. Count 7, alleging possession,…

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 Orphanides

Details

AGLC: R v Orphanides [2002] VSCA 86
Case: [2002] VSCA 86
Decision Date: 13 June 2002

CaseChat Overview and Summary

The case of R v Orphanides was heard in the Supreme Court of Victoria, where the defendant, Orphanides, appealed against his sentence for drug trafficking, arguing it was manifestly excessive. Orphanides had previously been convicted of drug trafficking and was on parole when he committed the current offence. The appeal was based on several grounds, including the exceptional hardship of the defendant's young child suffering from a congenital illness and Orphanides' assistance to the authorities in other matters, which had not yet been acted upon by the Parole Board.

The legal issues before the court involved whether the sentence imposed was manifestly excessive, and whether exceptional circumstances existed that would mitigate against the cumulation of sentences. The court had to consider the totality principle as outlined in the Sentencing Act 1991, specifically section 16(3B), which required a consideration of the cumulative effect of the sentences. The court also needed to evaluate the exceptional hardship of the defendant's child and the defendant's assistance to the authorities as factors potentially mitigating against incarceration.

The court found that while the exceptional circumstances presented by Orphanides were compelling, they did not sufficiently mitigate against the imposition of a cumulative sentence. The court emphasised the importance of deterrence and the need to uphold the integrity of the parole system. Despite the recognition of Orphanides' assistance to the authorities and the hardship faced by his child, the court concluded that the totality principle required the sentences to run consecutively. The application to lead further evidence was also denied as it did not provide new information that would significantly alter the outcome.

The final orders of the court were that the appeal against sentence was dismissed, and Orphanides was to serve the full term of imprisonment as determined by the lower court. The court did, however, commend Orphanides for his assistance to the authorities and noted the exceptional hardship faced by his child, which would be taken into account in parole considerations.

Orders