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Sergi v DPP (Cth)

Sergi v DPP (Cth)

Case [2015] VSCA 181 21 July 2015

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0112
ANTONIO SERGI	Appellant
v
DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH)	First Respondent
and
DIRECTOR OF PUBLIC PROSECUTIONS (VICTORIA)	Second Respondent

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JUDGES:	MAXWELL P, REDLICH and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 June 2015
DATE OF JUDGMENT:	21 July 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 181
JUDGMENT APPEALED FROM:	DPP v Sergi (Unreported, County Court of Victoria, Judge Montgomery, 13 May 2014)

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CRIMINAL LAW – Appeal – Sentence – Trafficking in a commercial quantity of a controlled drug contrary to s 302.2(1) of the Criminal Code (Cth) – Sentenced to 9 years' imprisonment with non-parole period of 7 years – Trafficking in a drug of dependence (large commercial quantity) contrary to s 71 of the Drugs Poisons and Controlled Substances Act 1981 (Vic) – Sentenced to 7 years' imprisonment with non-parole period of 5 years – State sentence ordered to commence 5 years after commencement of Commonwealth sentence – Total effective sentence of 12 years with appellant required to serve 10 years before being eligible for parole – Whether sentence manifestly excessive – Whether non-parole period of Commonwealth sentence manifestly excessive – Whether order for cumulation manifestly excessive – Delay – Delay during period where appellant changed plea to not guilty – Consequences of delay – State offence committed while on bail for Commonwealth offence – Totality – Sentence not manifestly excessive – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D D Gurvich	Emma Turnball Lawyers
For the First Respondent	Mr L K Crowley	Director of Public Prosecutions (Cth)
For the Second Respondent	Mr B F Kissane QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

MAXWELL P

REDLICH JA
BEACH JA:

On 29 April 2014, the appellant, who had previously pleaded guilty to one charge of trafficking a commercial quantity of a controlled drug (MDMA), contrary to s 302.2(1) of the Criminal Code Act 1995 (Cth), was arraigned and pleaded guilty to one charge of possessing a drug of dependence (MDMA) contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981 and one charge of trafficking in a drug of dependence (MDMA) in a quantity not less than the large commercial quantity applicable to that drug, contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981. In addition, the applicant consented to the uplifting of, and pleaded guilty to, two summary charges, namely possessing cartridge ammunition while not being the holder of a licence under the Firearms Act 1996 and driving a motor vehicle while his authorisation to do so was suspended.

Following a plea hearing in relation to all charges, the appellant was sentenced on 13 May 2014 as follows:

Commonwealth indictment

Count No

Count

Statutory Maximum

Sentence

Cumulation

1 Trafficking in a commercial quantity of a controlled drug (MDMA)
[Criminal Code 1995 (Cth) s 302.2(1)] Life imprisonment and/or 7500 penalty units 9 years’ imprisonment Commences 13 May 2014

Total effective sentence 9…

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 Sergi v DPP (Cth)

Details

AGLC: Sergi v DPP (Cth) [2015] VSCA 181
Case: [2015] VSCA 181
Decision Date: 21 July 2015

CaseChat Overview and Summary

Sergi appealed against his sentence for trafficking in a commercial quantity of a controlled drug, arguing that it was manifestly excessive. The appellant was sentenced in the County Court of Victoria to 7 years' imprisonment with a non-parole period of 5 years for trafficking in a drug of dependence, and in the High Court to 9 years' imprisonment with a non-parole period of 7 years for trafficking in a commercial quantity of a controlled drug. The Victorian sentence was ordered to commence 5 years after the Commonwealth sentence, resulting in an effective sentence of 12 years with a requirement to serve 10 years before being eligible for parole. The appellant argued that the sentence was manifestly excessive, particularly the non-parole period of the Commonwealth sentence and the order for cumulation.

The court considered whether the sentence was manifestly excessive and whether the delay in the proceedings, which occurred when the appellant changed his plea to not guilty, warranted a reduction in sentence. The court also examined the impact of the state offence being committed while the appellant was on bail for the Commonwealth offence. The court found that the sentence was not manifestly excessive, taking into account the totality of the appellant's offending, which involved trafficking in a large quantity of a controlled drug, and the need to deter such conduct. The court also found that the delay did not warrant a reduction in sentence, as the appellant had not demonstrated that he was prejudiced by the delay. The appeal was dismissed.

The court did not order any specific relief for the appellant but dismissed the appeal against his sentence. The appellant remained subject to the original sentence imposed by the courts.

Orders