Romano Falzon v The Queen (No 2) - [2018] VSCA 179

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0166

ROMANO FALZON	Applicant
v
THE QUEEN (No 2)	Respondent

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JUDGES:	WHELAN, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 March 2017
DATE OF JUDGMENT:	27 July 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 179
JUDGMENT APPEALED FROM:	DPP v Falzon [2016] VCC 1039 (Judge Smith)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Cultivation of commercial quantity of cannabis – Trafficking in drug of dependence – Sentence of 3 years and 9 months’ imprisonment with non-parole period of 2 years and 6 months – Whether incongruity between individual sentences – Whether sentence manifestly excessive – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis QC with Mr C Carr	James Dowsley & Associates
For the Respondent	Mr D Trapnell QC with Mr J Lewis	Mr J Cain, Solicitor for Public Prosecutions

WHELAN JA
PRIEST JA
BEACH JA:

Introduction

On 27 May 2016, a jury in the County Court convicted the applicant of cultivating a commercial quantity of cannabis at Sunshine North (charge 2), and trafficking in a drug of dependence, cannabis, at Sydenham (charge 3). The jury acquitted the applicant on a charge of trafficking a commercial quantity of cannabis at Sunshine North (one charge — charge 1). No verdict was taken on a charge of cultivating a drug of dependence at Sydenham (charge 4), that charge being an alternative to charge 3.

Following a plea, on 21 July 2016 the trial judge sentenced the applicant to a total effective sentence of three years and nine months’ imprisonment, and fixed a non-parole period of two years and six months, according to the following table:

Charge Offence Sentence Cumulation

1 Trafficking in a commercial quantity of cannabis[1] [at Sunshine North] [Not guilty] —

2 Cultivation of narcotic plants — commercial quantity[2] [at Sunshine North] 2 years and 6 months Base

3 Trafficking in a drug of dependence[3] [at Sydenham] 2 years and 6 months 15 months

4 Cultivation of narcotic plants[4] [No verdict taken]

Total Effective Sentence: 3 years and 9 months’ imprisonment

Non-Parole Period: 2 years and 6 months

[1]Drugs, Poisons and Controlled Substances Act1981, s 71AA. The maximum sentence is 25 years’ imprisonment.
[2]Drugs, Poisons and Controlled Substances Act1981, s 72A. The maximum sentence is 25 years’ imprisonment.
[3]Drugs, Poisons and Controlled Substances Act1981, s 71AC(1). The maximum sentence is 15 years’ imprisonment.
[4]Drugs, Poisons and Controlled Substances Act1981, s 72B. The maximum sentence is 15 years’ imprisonment.

The applicant sought leave to appeal against both conviction and sentence. In effect, the grounds with respect to sentence were as follows:

1. The sentence on charge 3 [trafficking cannabis] is impermissibly incongruent with the sentence on charge 2 [cultivating a commercial quantity of cannabis].
2. The sentence on charge 3, trafficking cannabis, is manifestly excessive.

On 5 April 2017, by a majority (Priest and Beach…

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.

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Details

Case: [2018] VSCA 179
Decision Date: 27 July 2018

CaseChat Overview and Summary

In the case of Romano Falzon v The Queen (No 2), the appellant, Falzon, sought leave to appeal against his sentence imposed by the Supreme Court of Victoria. Falzon was found guilty of cultivating a commercial quantity of cannabis and trafficking in a drug of dependence. The court sentenced him to a total of three years and nine months' imprisonment, with a non-parole period of two years and six months. The primary issue before the court was whether there was an incongruity between the sentences imposed for the two charges and whether the sentence was manifestly excessive, warranting an appeal.

The court examined the principles of sentencing, particularly the need to ensure that sentences are proportionate and consistent. It considered the gravity of the offences and the appellant's role in the criminal activities. The court noted that while the sentences for the individual charges might appear disparate, they reflected the seriousness of the offences and the appellant's involvement. Furthermore, the court found that the overall sentence, including the non-parole period, was not manifestly excessive given the nature and circumstances of the crimes committed.

After careful consideration of the arguments presented and the relevant legal principles, the court determined that there was no incongruity between the sentences for the two charges and that the overall sentence was appropriate. Consequently, the court refused Falzon's application for leave to appeal. This decision underscores the importance of proportionality and consistency in sentencing while recognising the gravity of drug-related offences.

Orders