Raafat Danaf v The Queen - [2020] VSCA 226

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0073

RAAFAT DANAF	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 September 2020
DATE OF JUDGMENT:	7 September 2020
MEDIA NEUTRAL CITATION:	[2020] VSCA 226
JUDGMENT APPEALED FROM:	DPP v Danaf (Unreported, County Court of Victoria, Judge Coish, 6 March 2020)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Leave to appeal – Sentence – Trafficking in commercial quantity of drug of dependence – 447 kilograms 1,4-Butanediol – Rolled up charge – Related summary offence of dealing with property suspected of being proceeds of crime – $241,200 cash – Total effective sentence of 6 years’ imprisonment with non-parole period of 4 years – Whether judge erred by finding no causal link between offending and personal circumstances – Whether sentence manifestly excessive – No prospect of less severe sentence if leave granted – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	Theo Magazis & Associates
For the Respondent	Mr P L Bourke	Ms A Hogan, Solicitor for Public Prosecutions

WEINBERG JA:

On 28 February 2020, the applicant, Raafat Danaf, pleaded guilty in the County Court at Melbourne to a rolled-up charge of trafficking in a drug of dependence in a commercial quantity (1,4–Butanediol). He was also dealt with for the related summary offence of dealing with property suspected of being proceeds of crime.

On 6 March 2020, the applicant was sentenced as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Trafficking in commercial quantity of drug of dependence (1,4–Butanediol) [s 71AA(1) — Drugs, Poisons and Controlled Substances Act 1981] 25 years 5 years and 6 months Base

Related summary offence

— Dealing with property suspected of being proceeds of crime [s 195 — Crimes Act 1958] 2 years 1 year 6 months

Total effective sentence: 6 years’ imprisonment

Non-parole period: 4 years

Pre-sentence detention declared: 693 days

Section 6AAA statement: 8 year’ imprisonment with a non‑parole period of 6 years

Ancillary orders: Forfeiture and disposal orders.

By notice dated 23 April 2020, the applicant seeks leave to appeal against that sentence on two grounds. They are as follows:

1.The sentencing judge erred by concluding that there was not a causal nexus between the applicant’s offending and his background, drug addiction, and his separation from his wife.
2.The sentence imposed on the charge on indictment (5 years 6 months), the sentence imposed on the summary charge (1 year), the order for cumulation made on the summary charge (6 months) and the non-parole period fixed (4 years) were each manifestly excessive.

For the reasons that follow, I would refuse leave to appeal on both grounds.

Circumstances surrounding the commission of the offences

In April 2018, members from the Drug Taskforce of Victoria Police commenced an investigation into the importation of 383 kilograms of 1,4-Butanediol into Melbourne.…

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 Raafat Danaf v The Queen

Details

AGLC: Raafat Danaf v The Queen [2020] VSCA 226
Case: [2020] VSCA 226
Decision Date: 7 September 2020

CaseChat Overview and Summary

The case of Raafat Danaf against The Queen arose from a dispute concerning the sentencing of Danaf for trafficking in a commercial quantity of a drug of dependence, specifically 447 kilograms of 1,4-Butanediol. Additionally, Danaf was charged with a related summary offence of dealing with property suspected of being proceeds of crime, involving $241,200 in cash. The total effective sentence imposed was 6 years' imprisonment with a non-parole period of 4 years. The High Court of Australia was tasked with determining whether leave to appeal should be granted.

The primary legal issues for the court's consideration were whether the trial judge erred in finding no causal link between the offending and Danaf's personal circumstances, and whether the sentence was manifestly excessive. The court also needed to assess whether there was a prospect of a less severe sentence if leave to appeal were granted. These issues were crucial in determining the fairness and proportionality of the sentence imposed on Danaf.

In examining the appeal, the court found that the trial judge did not err in concluding there was no causal link between the offending and Danaf's personal circumstances. Furthermore, the court determined that the sentence was not manifestly excessive. The evidence showed that the sentence was proportionate to the seriousness of the offences committed. The court also concluded that there was no prospect of a less severe sentence if leave to appeal were granted. Consequently, the High Court refused leave to appeal, upholding the original sentence.

As a result of the court's decision, the original sentence of 6 years' imprisonment with a non-parole period of 4 years remains in effect. Danaf's appeal was dismissed, and he is required to serve the full term as determined by the trial court. This outcome underscores the importance of ensuring that sentences reflect the gravity of the offences while also considering proportionality and the absence of a causal link to personal circumstances.

Orders