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:

1. 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.

2. 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.

3. 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).

4. 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.

5. 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 few months hence, on 23 October 2023.

   [3]See Awad v The Queen (2021) 291 A Crim R 303.

   [4]Awad v The Queen (2022) 96 ALJR 1082.

6. Of relevance to the present application, in the time between the jury’s verdict on the attempted possession charge and the High Court’s orders, the manufacturing charge had resolved.  Thus, on 3 March 2022, in effective substitution for the manufacturing charge, the applicant pleaded guilty to the less serious charge of permitting the use of premises for trafficking in a drug of dependence, 3, 4-methylenedioxy-N-methylamphetamine (‘the permitting charge’).[5]  Following a plea conducted on 19 May 2022, on 24 May 2022 the judge sentenced the applicant to one year and six months’ imprisonment, such sentence to be served concurrently with the sentence imposed on 12 November 2019.  In imposing sentence, the judge did not fix a non-parole period, and, significantly, did not declare any period of pre-sentence detention.

   [5]Drugs, Poisons and Controlled Substances Act 1981, s 74D(1). The maximum penalty is five years’ imprisonment.

7. Briefly, the applicant’s offending on the permitting charge was as follows.  In October 2015, the applicant used a false name to lease a warehouse in Airport West.  Around April 2017, the occupant of adjacent premises began to notice strong chemical odours coming from the warehouse.  On 11 May 2017, law enforcement officers investigating the offending on the attempted possession charge executed a search warrant at the warehouse and observed a number of chemicals and items of equipment used in the manufacture of 3, 4-methylenedioxy-N-methylamphetamine.  The items seized were not then capable of being used in the manufacture of that illicit drug, but were consistent with that having occurred in the past.  It was not possible for the prosecution to identify when the manufacture had occurred or the quantity of substance produced.  Relevantly, in his reasons for sentence given on 24 May 2022, the judge observed that the applicant’s offending occurred in the context of him being engaged in the business of drug trafficking, as evidenced by his conviction on the attempted possession charge (for which he was then undergoing sentence).

8. The applicant sought leave to appeal against the sentence imposed on the permitting charge on a single ground as follows:[6]

   The period of time that the applicant served in custody from 12 September 2019 to 24 May 2022 was not taken into account as unallocated pre-sentence detention when the applicant was sentenced on 24 May 2022.

   [6]On 6 February 2023 the Registrar granted an extension of time within which to file a notice of application for leave to appeal.

9. Very fairly, the respondent in this Court accepted that there was an ‘error’ in the sentence imposed for the permitting charge on 24 May 2022,[7] in that it failed to take into account as a relevant consideration the fact that the applicant had been in custody from 12 September 2019 to 24 May 2022 on the attempted possession charge in circumstances where the sentence he was serving on that charge was subsequently set aside.  If the applicant is acquitted of the attempted possession charge on the re-trial, the period of detention undergone for that offence will never be recognised.[8]

   [7]See Criminal Procedure Act 2009, s 281(1).

   [8]Warwick v The Queen (2010) 201 A Crim R 580, 585 [17]; Karpinski v The Queen (2011) 32 VR 85, 101–3 [65]–[74] (‘Karpinski’).

10. The respondent conceded that, whilst the sentencing judge on 24 May 2022 was aware the applicant had applied to the High Court for special leave to appeal against the conviction for which he was serving a sentence, the judge did not know that the High Court ultimately would set aside the conviction on 9 November 2022.  For that reason, the time spent in custody on the attempted possession charge as unallocated pre-sentence detention was not taken into account in imposing sentence on the permitting charge.  The authorities make it clear, however, that the fact that a sentencing judge may not know that a conviction will be set aside (or charges withdrawn) in the future is irrelevant.[9]  Hence, the period that the applicant had already spent in custody between 12 November 2019 and 24 May 2022, ought to have been factored into the sentence imposed under the common law ‘Renzella discretion’.[10]

    [9]Karpinski.

    [10]R v Renzella [1997] 2 VR 88, 96–97 (‘Renzella’); Karpinski; Wheldon v The Queen (2011) 31 VR 297, 302 [31]–[32].

11. Furthermore, the respondent conceded that the ‘error’ is compounded by the fact that, when the applicant was sentenced on 24 May 2022 for the permitting charge, no pre-sentence detention was able to be declared in respect of that offending.  The respondent submitted that, in conformity with Broad,[11] s 18(1) of the Act cannot apply to periods of detention served pursuant to a sentence.

    [11]R v Broad [1999] 3 VR 31.

12. Ultimately, the respondent advanced the following submissions in writing:

    The Respondent concedes that given the circumstances of the present case where the Applicant had been in custody for a lengthy period between 12 September 2019 until 24 May 2022 for two (albeit overlapping) periods of pre-sentence detention, and only 61 days of that period was able to be reckoned as pre-sentence detention under s 18(1) of the Act, this court should set aside the sentence imposed on 24 May 2022 and, applying the Renzella discretion in a broad way, impose a different sentence of less than the present sentence of 1 year and 6 months imprisonment given the very lengthy period of uncredited pre-sentence detention he has served.

13. We were of the view that we should act upon the respondent’s concessions.  Taking all relevant features into account — including the Renzella considerations — we were of the view that sentence of nine months’ imprisonment should be substituted for the sentence first imposed.

14. In imposing that sentence, we acknowledge that, in conformity with Jennings,[12] the substituted sentence operates from the date of the original sentence. Given that it is unknown whether the applicant will in future have to serve a period of imprisonment in relation to the attempted possession charge, pursuant to s 18(1) of the Act we declined to make any declaration of pre-sentence detention. If, ultimately, the applicant is convicted and sentenced for the attempted possession charge, the calculation of appropriate pre-sentence detention will be a matter for the sentencing judge, making due allowance for the fact that, since 9 November 2022, the applicant has been remanded on the attempted possession charge whilst at the same time serving a sentence of imprisonment on the permitting charge.

    [12]R v Jennings [1999] 1 VR 352, 369 [66] (Brooking JA); 371 [75] (Tadgell JA).

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