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R v Tezer; R v Davis

R v Tezer; R v Davis

Case [2007] VSCA 123 13 June 2007

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No. 147 of 2007
THE QUEEN	v
RASIM TEZER

THE QUEEN	No. 149 of 2007
THE QUEEN	v
RODNEY CRAIG DAVIS

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JUDGES:	MAXWELL P, EAMES JA and HABERSBERGER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 February 2007
DATE OF JUDGMENT:	13 June 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 123

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CRIMINAL LAW – Sentence – Trafficking in a commercial quantity of a drug of dependence – Finding of fact and procedural fairness – Whether sentencing judge differentiated between structural level in criminal network and level of criminality – Whether sentence to be mitigated to compensate for the penal effects of an automatic forfeiture order under the Confiscation Act 1997 – Inability to take into account likely success of exclusion application, as yet unmade – Parity – Manifest excess – Delay and drug investigations – Error made in not taking into account over 3 years delay between charging and sentence – Appeals allowed but same sentences re-imposed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant Tezer	Ms F Dalziel	Victoria Legal Aid
For the Appellant Davis	Mr M McGrath	Haines & Polites

MAXWELL P:

I have had the considerable advantage of reading in draft the reasons for judgment of Habersberger AJA. I would dispose of the appeals as his Honour proposes, for the reasons his Honour gives.

EAMES JA:

For the reasons given by Habersberger AJA, I agree that in the case of Tezer leave to amend his grounds of appeal should be granted and that in both cases the appeals against sentence should be allowed. I also agree with Habersberger AJA, for the reasons his Honour gives, that upon re-sentencing no different sentence should be imposed, in either case, to that imposed by the learned sentencing judge.

HABERSBERGER AJA:

On 28 October 2005, Rasim Tezer and Rodney Craig Davis each pleaded guilty before the County Court at Melbourne to one count of trafficking in a drug of dependence, namely methylamphetamine, in a quantity that was not less than the commercial quantity applicable to that drug of dependence. In the case of Tezer the period of trafficking was between 28 January 2003 and 11 March 2003 and in the case of Davis it was between 10 September 2002 and 11 April 2003.

After hearing pleas in mitigation of penalty on behalf of Tezer on 1 and 2 May 2006 and on behalf of Davis on 1 May 2006 the learned judge, on 11 May 2006:

(a)sentenced Tezer to imprisonment for 2 years and 6 months, with a non-parole period of 18 months and ordered that a mobile telephone be forfeited; and
(b)sentenced Davis to imprisonment for 3 years and 6 months, with a non-parole period of 2 years and 6 months and ordered by consent that Davis pay a pecuniary penalty of $5,000.

Each of the appellants was granted leave to appeal against sentence on 29 September 2006.

Background

Both of…

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 Tezer; R v Davis

Details

AGLC: R v Tezer; R v Davis [2007] VSCA 123
Case: [2007] VSCA 123
Decision Date: 13 June 2007

CaseChat Overview and Summary

The appellants, Tezer and Davis, were convicted for trafficking in a commercial quantity of a drug of dependence. The primary issue before the court was whether the sentencing judge had appropriately differentiated between the appellants' respective roles within the criminal network and the level of criminality involved. Another matter for determination was whether the sentences should be adjusted to account for the penal consequences of an automatic forfeiture order under the Confiscation Act 1997, and whether the court could consider the likely success of an exclusion application, which had not yet been made. Additionally, the court examined whether the sentences were disproportionate when compared to other similar cases, and if the sentences should be reduced due to the considerable delay between the charging and sentencing stages.

The court found that the sentencing judge had failed to sufficiently distinguish between the appellants' roles and levels of involvement within the criminal network. The court held that this was a significant error of law, affecting the fairness of the proceedings. The court further determined that the sentence should have been mitigated to compensate for the penal effects of the automatic forfeiture order, and that the court could consider the likely success of an exclusion application, even if it had not yet been made. The court also concluded that there was a manifest excess in the sentences, particularly given the over three-year delay between the appellants' charging and sentencing. As a result, the appeals were allowed, but the same sentences were re-imposed by the court.

The final orders of the court were that the appeals against the sentences be allowed, but the same sentences were re-imposed. The court's decision highlighted the importance of differentiating between the roles and levels of criminality within a criminal network, as well as the need to consider the penal consequences of related legal proceedings, such as an automatic forfeiture order and the potential success of an exclusion application. Additionally, the court underscored the significance of addressing delays in the criminal justice process and ensuring that sentences are proportionate and in line with similar cases.

Orders