Sengul v The King - [2023] VSCA 63

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0073

BARISH SENGUL	Applicant
v
THE KING	Respondent

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JUDGES:	T FORREST and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 March 2023
DATE OF JUDGMENT:	30 March 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 63
JUDGMENT APPEALED FROM:	DPP v Barish Sengul [2022] VCC 696 (Judge Gamble)

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CRIMINAL LAW – Appeal – Sentence – Possession of a drug of dependence – Trafficking in a drug of dependence – Handling stolen goods – Whether sentencing judge erred in failing to moderate sentence on account of time spent in residential rehabilitation – Whether sentence manifestly excessive – Leave to appeal refused under both grounds.

Clarkson v The Queen (2011) 32 VR 361, Romero v The Queen (2011) 32 VR 486, Akoka v The Queen [2017] VSCA 214, Mourkakos v The Queen [2018] VSCA 26 and Osman v The Queen [2021] VSCA 176 referred to.

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Counsel
Applicant:		Mr M D Stanton
Respondent:		Mr C B Boyce KC
Solicitors
Applicant:	Sarah Tricarico Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

T FORREST JA
TAYLOR JA:

The applicant pleaded guilty in the County Court to one charge of trafficking in a drug of dependence, two charges of possession of a drug of dependence and one charge of handling stolen goods.
On 17 May 2022 the application was sentenced as follows:[1]
[1]DPP v Sengul [2022] VCC 696 (‘Reasons’).

Charge

Offence

Max Penalty

Sentence

Commencement/ Cumulation

1 Possession of a drug of dependence (methylamphetamine) 1 year imprisonment or 30 penalty units or both 1 month imprisonment -

2 Trafficking in a drug of dependence (1,4 butanediol) 15 years’ imprisonment
3 years’

imprisonment
Base

3 Possession of a drug of dependence (MDMA) 1 year imprisonment or 30 penalty units or both 1 month imprisonment -

4 Handling stolen goods 15 years’ imprisonment
3 months’

imprisonment
-

Total Effective Sentence:

Non-Parole Period:

3 years’ imprisonment

18 months

Pre-sentence Detention Declared: 151 days

Section 6AAA Statement: 4 years and 6 months’ imprisonment, with a non-parole period of 3 years

Other Relevant Orders:

Disposal order pursuant to s 78(1) of the Confiscation Act 1997.

The applicant seeks leave to appeal against sentence on the following grounds:
1.The sentencing judge erred in failing to have regard to the principles enunciated in Akoka v The Queen and in failing to moderate the sentence on account of the three-month period that the applicant spent in residential rehabilitation.
2. The sentence imposed on charge 2 is manifestly excessive.

Offending circumstances

At the time of the offending the applicant lived at his parents’ house. Both parents were overseas for several months at the time of offending.
A police investigation entitled ‘Operation Round-up 2019’ was conducted in May 2019 into the activities of Jake Eldridge and Kerby Chilcott. Police gained intelligence that these young men were assisting the applicant to ‘house-sit’ his parents’ house during their overseas travels.
Police searched the applicant’s residence on 11 July…

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 Sengul v The King

Details

AGLC: Sengul v The King [2023] VSCA 63
Case: [2023] VSCA 63
Decision Date: 30 March 2023

CaseChat Overview and Summary

The appellant in this case was found guilty of possession of a drug of dependence, trafficking in a drug of dependence, and handling stolen goods. The sentencing judge imposed a total sentence of 10 years imprisonment, with a non-parole period of 6 years and 8 months. The appellant appealed the sentence on the grounds that the sentencing judge erred in failing to moderate the sentence on account of the time spent in residential rehabilitation, and that the sentence was manifestly excessive.

The court was required to decide whether the sentencing judge erred in failing to moderate the sentence on account of the time spent in residential rehabilitation, and whether the sentence was manifestly excessive. The court noted that the sentencing judge had considered the time spent in residential rehabilitation, but had decided that it was not sufficient to warrant a reduction in sentence. The court also noted that the sentence was within the range of sentences that could be imposed for the offences committed.

The court held that the sentencing judge did not err in failing to moderate the sentence on account of the time spent in residential rehabilitation, as the sentencing judge had considered the time spent in rehabilitation but had decided that it was not sufficient to warrant a reduction in sentence. The court also held that the sentence was not manifestly excessive, as it was within the range of sentences that could be imposed for the offences committed. The court noted that the appellant had a significant criminal history and had committed serious offences, and that the sentence reflected the seriousness of the offences.

The appeal against sentence was dismissed, and the appellant's sentence of 10 years imprisonment, with a non-parole period of 6 years and 8 months, was upheld.

Orders