Tarakci v The Queen - [2010] VSCA 270

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 663 of 2009

YASSIN TARAKCI	Applicant
	v
THE QUEEN	Respondent

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JUDGES	BUCHANAN, NEAVE and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	8 October 2010
DATE OF JUDGMENT	8 October 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 270
JUDGMENT APPEALED FROM	R v Tarakci (Unreported, 4 June 2009, County Court of Victoria, Judge Gucciardo)

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CRIMINAL LAW – Drug offences – Methylamphetamine and MDMA – Trafficking simpliciter – Effective sentence for drug offending 39 months’ imprisonment – Co-accused convicted of trafficking in commercial quantity – Co-accused trafficked in five times the quantity that applicant did – Co-accused sentenced to total effective sentence of 50 months’ imprisonment – Insufficient disparity between applicant and co-accused – However Director’s appeal against co-accused’s sentence successful – Disparity therefore no longer an issue.

SENTENCING ERROR – Sentencing judge erred by misreading sentence to be imposed on count 1 and mistakenly failing to impose sentence on counts 7 and 8 – Sentencing judge sought to correct errors by re-calling matter and re-sentencing applicant – Re-sentencing not carried out within 14 days as required by s 104A of the Sentencing Act 1991 – Sentencing judge functus officio – Concession by Crown that applicant to be re-sentenced – Application for leave to appeal granted and appeal allowed.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr D.A. Dann	Randles Cooper & Co Pty Ltd
For the Respondent	Mr T. Gyorffy	Mr C. Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I will ask Weinberg JA to deliver the first judgment.

WEINBERG JA:

On 8 May 2009, the applicant, Yassin Tarakci, pleaded guilty in the County Court at Melbourne to three counts of trafficking in a drug of dependence, namely methylamphetamine and MDMA (counts 1, 7 and 8), two counts of possessing an unregistered hand gun (counts 2 and 3), three counts of possessing a drug of dependence, namely Alprazolam and MDMA (counts 4, 5 and 9), and two counts of dealing with the proceeds of crime (counts 6 and 10). He further pleaded guilty to eight summary charges. These included possessing a controlled weapon (a knife) without lawful excuse (charge 11), and seven counts of possessing a prohibited weapon without an exemption or approval, namely, capsicum spray, two flick knives, two extendable batons and two sets of knuckle-dusters (charges 5, 7, 8, 15, 16, 17 and 18).

The applicant was initially sentenced on 4 June 2009. However, his Honour misread count 7 as count 1, and then failed to announce a sentence for counts 7 and 8. The Court was reconvened on 29 June 2009 and the applicant was then sentenced as follows:

COUNT OFFENCE SENTENCE IMPOSED CUMULATION

1 Trafficking in a drug of dependence 18 months -

2 Possession of an unregistered hand gun 9 months 1 month

3 Possession of an unregistered hand gun 9 months 1 month

4 Possession of a drug of dependence 6 months 2 months

5 Possession of a drug of dependence 6 months

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 Tarakci v The Queen

Details

AGLC: Tarakci v The Queen [2010] VSCA 270
Case: [2010] VSCA 270
Decision Date: 8 October 2010

CaseChat Overview and Summary

The appeal by the applicant, Tarakci, against his sentence for drug trafficking offences was heard in the High Court of Australia. The applicant was convicted of trafficking in methylamphetamine and MDMA, and was sentenced to an effective term of 39 months’ imprisonment. The co-accused, who was involved in trafficking a significantly larger quantity of drugs, was sentenced to 50 months’ imprisonment. The applicant’s appeal focused on the disparity between his sentence and that of his co-accused, as well as errors in the initial sentencing process.

The legal issues before the court included whether the sentencing judge erred in the imposition of the sentence, and whether the disparity in sentences between the applicant and his co-accused warranted a reduction in the applicant's sentence. Additionally, the court had to consider whether the re-sentencing process complied with the statutory requirements under s 104A of the Sentencing Act 1991. The court noted that while the initial disparity in sentences was not considered significant, the successful appeal by the Director against the co-accused’s sentence altered this context.

The High Court found that the sentencing judge had indeed erred by misreading the sentence for count 1 and failing to impose sentences on counts 7 and 8. Although the sentencing judge attempted to correct these errors by re-calling the matter, the re-sentencing did not occur within the mandated 14-day period, rendering the judge functus officio. The Crown conceded that the applicant should be re-sentenced. The Court granted the applicant leave to appeal and allowed the appeal, ordering that the applicant be re-sentenced.

The final orders of the court were that the applicant be re-sentenced in accordance with the law, and that the appeal against the original sentence be allowed. The court did not reduce the sentence on the basis of the earlier disparity, given the successful appeal against the co-accused’s sentence, but mandated a re-sentencing process to correct the identified errors.

Orders