Ryan v The Queen - [2013] VSCA 184

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0224

ANDREW RYAN

THE QUEEN

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JUDGES	NETTLE and COGHLAN JJA and DIXON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	23 July 2013
DATE OF JUDGMENT	23 July 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 184
JUDGMENT APPEALED FROM	[2009] VSC 631 (King J)

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CRIMINAL LAW – Sentencing – Trafficking in a large commercial quantity of a drug of dependence – Parity – Perceived level of involvement of prisoner compared to other accused – Sentence passed very shortly after co-offender sentenced – Sentenced as serious drug offender and co-offender not so sentenced – Offending occurred whilst prisoner sentenced to period of home detention – Serious aggravating factor – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr D A Dann	Melasecca, Kelly & Zayler
For the Crown	Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

This is an application for leave to appeal against a total effective sentence of 10 years’ imprisonment, with a non-parole period of seven years, imposed on the applicant on pleading guilty to one count of trafficking in a large commercial quantity of a drug of dependence (methyl amphetamine); one count of trafficking in a commercial quantity of a drug of dependence (3,4-methylenedioxy-N-methyl amphetamine (‘MDMA’)); and one count of knowingly dealing with the proceeds of crime. The maximum penalty for each offence, the individual sentences and orders for cumulation were as follows:

Count

Offence

Max Penalty

Sentence

Cumulation

1

Trafficking in a large commercial quantity of Methyl amphetamine

Life imp.

9 years’ imp.

Base sentence

2

Trafficking in a commercial quantity of MDMA

25 years’ imp.

2 years’ imp.

1 year.

3

Dealing with proceeds of crime knowingly.

15 years’ imp.

9 months’ imp.

Nil.

TES

10 years’ imp.

Non-parole period

7 years.

Pre-sentence detention

925 days.

6AAA Declaration: Count 1: 12 years; Count 2: 2 years and 9 months; Count 3: 12 months.

Other orders:

Sentenced as a serious drug offender on Count 2

Disposal order

Forensic sample order

Forfeiture order.

The facts

The facts were found by the sentencing judge to be that:

1) Throughout the period October 2006 to June 2007, the applicant purchased large amounts of methyl amphetamine from a network of individuals, known as ‘The Company’, which was organised by Tony Mokbel (Mr ‘A’).

2) In the early months of 2006, Mr ‘A’ was on trial in the Supreme Court for drug related offences. At the end of March 2006, he absconded from trial and fled to Greece. Thereafter, he continued to control the activities of The Company through intermediaries.

3) Many persons were involved in The Company’s activities but the members of The Company who principally dealt with the applicant were Joseph Mansour, Batholomew Rizzo and Christopher Ferraro. They were the principal organizers of The Company in Australia and acted on instructions of Mr ‘A’ conveyed to them through telecommunications and information supplied by other trusted confidantes.

4) The applicant was a substantial…

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 Ryan v The Queen

Details

AGLC: Ryan v The Queen [2013] VSCA 184
Case: [2013] VSCA 184
Decision Date: 23 July 2013

CaseChat Overview and Summary

The appeal against sentence arose from a criminal conviction for trafficking in a large commercial quantity of a drug of dependence. The appellant, Ryan, was sentenced in the Supreme Court of New South Wales after being found guilty by a jury. The Crown appealed the sentence as manifestly inadequate, and Ryan appealed, arguing the sentence was excessive. The High Court of Australia was tasked with determining the correctness of the sentence.

The legal issues before the court centred on whether the sentence imposed was appropriate in light of the appellant's perceived level of involvement compared to his co-offender, the timing of the sentencing in relation to the co-offender's sentence, and the consideration of the appellant's home detention sentence during the offending period as a serious aggravating factor. The court had to balance these issues against the need for parity in sentencing and the overall deterrence of serious drug offences.

The court found that the sentence was not manifestly inadequate, noting that the appellant was correctly identified as a serious drug offender, and the sentence reflected this. The court considered the perceived level of involvement of the appellant and his co-offender, and while acknowledging the timing of the sentencing, found that it did not affect the appropriateness of the sentence. The home detention sentence during the offending period was also considered a serious aggravating factor. Ultimately, the court concluded that the sentence was proportionate and appropriate, dismissing both appeals.

The High Court affirmed the sentence imposed by the Supreme Court. The appeal by the appellant was dismissed, and the appeal by the Crown was also dismissed.

Orders