SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0086
| ABDULLAH TOPAL | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P and NIALL JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 15 November 2019 |
| DATE OF JUDGMENT: | 6 December 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 289 |
| JUDGMENT APPEALED FROM: | [2019] VCC 430 (Judge Cannon) |
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CRIMINAL LAW – Appeal – Sentence – Parity – Trafficking in drug of dependence (cocaine) – Plea of guilty – Applicant sentenced to 3 years’ imprisonment with non-parole period of 1 year – Co-offender pleaded guilty to trafficking in commercial quantity – Sentenced to 5 year CCO with 600 hours of community work – Judge reduced applicant’s sentence on account of lenient sentence on co-offender – Sentence extremely lenient – Whether parity required further reduction – Judge not required to reduce sentence to inadequate level – No error – Leave to appeal refused — Green v The Queen (2011) 244 CLR 462 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C K Wareham | Valos Black & Associates |
| For the Respondent | Mr C T Carr | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P
NIALL JA:
Introduction
Between 20 July 2015 and 24 November 2015, the applicant was an active participant in a cocaine trafficking syndicate. The other members of the syndicate were Julian Gallin, Christopher Carron and Kelvin Wong. The illicit work of the syndicate involved a well-organised, high turnover retail operation. Another person, Vladamir Djordjic, was in effect the syndicate’s wholesaler. The applicant’s primary role was to collect the drugs and deliver them to the many customers of the syndicate located in various parts of Melbourne. Following a period of covert surveillance, the applicant and other syndicate members were arrested and charged with trafficking offences.
The applicant pleaded guilty to a single charge of trafficking in a drug of dependence, namely 819.5 grams of cocaine, which carried a maximum of 15 years’ imprisonment. On 1 April 2019, he was sentenced to a term of 3 years’ imprisonment with a non-parole period of 12 months.
Other members of the syndicate pleaded guilty and were sentenced as follows:
(a) Gallin (one charge of trafficking in a drug of dependence in a large commercial quantity,[1] namely 3.735 kg[2] cocaine, and one summary charge of dealing with proceeds of crime): 9 years and 6 months’ imprisonment with a non-parole period of 5 years;
(b) Wong (one charge of trafficking in a drug of dependence in a large commercial quantity, namely 2.907 kg cocaine, and one charge of dealing with proceeds of crime): 7 years’ imprisonment with a non-parole period of 4 years; and
(c) Carron (one charge of trafficking in a drug of dependence in a commercial quantity,[3] namely 900 grams cocaine): a Community Corrections Order (‘CCO’) of five years’ duration with 600 hours of community work.
[1]The maximum for which is life imprisonment.
[2]This was the sum of the amounts trafficked by Wong and the applicant plus the amount found at the St Kilda premises on…
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- AGLC
- Topal v The Queen [2019] VSCA 289
- Case
- [2019] VSCA 289
- Decision Date
CaseChat Overview and Summary
The court considered the principles of sentencing and the need for parity in sentencing between co-offenders. It was noted that while the trial judge had taken into account the lenient sentence of the co-offender in reducing Topal’s sentence, the judge was not required to reduce Topal’s sentence to a level that was inadequate. The court referred to the case of Green v The Queen, which established that a trial judge has discretion in sentencing and is not bound to achieve exact parity between co-offenders. The appeal court found that the trial judge had appropriately exercised this discretion and that there was no error in the sentence imposed on Topal. Therefore, the appeal was dismissed, and leave to appeal was refused.
The court concluded that the sentence imposed on Topal was not excessively lenient when considering the totality of the circumstances and the discretion afforded to the trial judge. The co-offender’s sentence, while more severe, was appropriate given the nature and scale of their involvement. The appeal court held that the trial judge had correctly applied the relevant legal principles and that there was no basis for further reducing Topal’s sentence. Consequently, the original sentence of three years’ imprisonment with a non-parole period of one year was upheld.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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