Tambakakis v The King - [2023] VSCA 36

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0197

JOHN MICHAEL TAMBAKAKIS	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST and NIALL JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 February 2023
DATE OF JUDGMENT:	27 February 2023
DATE OF REASONS:	2 March 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 36
JUDGMENT APPEALED FROM:	DPP v Tambakakis (Unreported, County Court of Victoria, 24 May 2022, Judge Dean)

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CRIMINAL LAW – Appeal – Sentence – Sentence for permitting use of premises for trafficking in a drug of dependence imposed to run concurrently with sentence for attempted possession of a border controlled drug – Conviction for attempted possession of border controlled drug set aside – Whether error in failing to take pre-sentence detention into account when imposing sentence for permitting use of premises for trafficking in a drug of dependence – R v Renzella [1997] 2 VR 88; R v Jennings [1999] 1 VR 352 considered – Sentencing Act 1991, s 18(1) – Appeal allowed.

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Counsel
Applicant:		Mr P Smallwood
Respondent:		Ms K Breckweg and Ms E Addams
Solicitors
Applicant:	Stephen Andrianakis & Associates
Respondent:	Commonwealth Director of Public Prosecutions

PRIEST JA
NIALL JA:

In circumstances we will later describe in greater detail, on 24 May 2022 a judge imposed a sentence of one year and six months’ imprisonment on the applicant.
The applicant made an application for leave to appeal against that sentence. Upon hearing the application on 27 February 2023, the Court granted the application for leave to appeal; allowed the appeal; set aside the sentence; and in lieu sentenced the applicant to nine months’ imprisonment. These are our reasons for those orders.
An indictment filed in the County Court charged the applicant with manufacturing a controlled drug (‘the manufacturing charge’)[1] and attempting to possess a commercial quantity of an unlawfully imported border controlled drug, cocaine (‘the attempted possession charge’).[2] On 13 August 2019, a judge ordered that the charges be tried separately.
[1]Criminal CodeAct 1995 (Cth), sch 1 s 305.5(1) (‘Criminal Code’).
[2]Criminal Code, ss 11.1(1) and 307.5(1).
Subsequently, the applicant was tried on the attempted possession charge together with co-accused Danny Awad (‘Awad’) and Charbel Kanati. A jury found both the applicant and Awad guilty on 12 September 2019, and they were remanded in custody. Thereafter, on 12 November 2019, the judge sentenced each to 15 years’ imprisonment with a non-parole period of 10 years. Pursuant to s 18(1) of the Sentencing Act 1991 (‘the Act’), the judge declared 61 days’ pre-sentence detention, that declaration reflecting the period that the applicant and Awad had been in custody between the jury’s verdict on 12 September 2019 and the sentence on 12 November 2019.
Challenges by the applicant and Awad to their convictions and sentences failed in this Court.[3] On 9 November 2022, however, the High Court set aside the convictions and ordered a new trial.[4] The new trial is listed to commence in the County Court in a…

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 Tambakakis v The King

Details

AGLC: Tambakakis v The King [2023] VSCA 36
Case: [2023] VSCA 36
Decision Date: 27 February 2023

CaseChat Overview and Summary

The appellant was convicted of permitting the use of premises for trafficking in a drug of dependence and attempted possession of a border controlled drug. He was sentenced to concurrent terms of imprisonment for both offences. The appellant appealed against the sentence imposed for permitting the use of premises for trafficking in a drug of dependence. The appeal hinged on whether the trial judge failed to take into account the appellant's pre-sentence detention when imposing sentence for this offence. The conviction for attempted possession of a border controlled drug was set aside, which necessitated consideration of the sentence for the trafficking offence in isolation.

The court had to determine if there was an error in the trial judge's approach to sentencing, specifically whether the judge properly accounted for the appellant's pre-sentence detention. The court considered relevant authorities, including R v Renzella and R v Jennings, which establish that pre-sentence detention must be taken into account when imposing a sentence. The Sentencing Act 1991 was also relevant, particularly section 18(1), which requires the court to consider any period of detention already served by the defendant when imposing a sentence.

The court found that the trial judge did not adequately consider the effect of the appellant's pre-sentence detention when imposing the sentence for permitting the use of premises for trafficking in a drug of dependence. The court concluded that there was an error in the sentencing process as the trial judge did not sufficiently account for the pre-sentence detention. Consequently, the appeal was allowed. The case was remitted to the trial judge for resentencing, taking into account the appellant's pre-sentence detention.

Orders