SUPREME COURT OF VICTORIA
COURT OF APPEAL
| THE QUEEN | No. 147 of 2007 |
| v | |
| RASIM TEZER |
| THE QUEEN | No. 149 of 2007 |
| 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
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- AGLC
- R v Tezer; R v Davis [2007] VSCA 123
- Case
- [2007] VSCA 123
- Decision Date
CaseChat Overview and Summary
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
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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