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Topal v The Queen

Topal v The Queen

Case [2019] VSCA 289 6 December 2019

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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…

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 Topal v The Queen

Details

AGLC: Topal v The Queen [2019] VSCA 289
Case: [2019] VSCA 289
Decision Date: 6 December 2019

CaseChat Overview and Summary

The applicant, Topal, appealed against his sentence for trafficking in a drug of dependence, specifically cocaine. The case was heard by the court of appeal in Australia. The dispute involved the sentencing of Topal and his co-offender, who had both pleaded guilty to their respective charges. The primary issue before the court was whether the sentence imposed on Topal was too lenient when compared to the sentence of his co-offender. The court needed to determine if the trial judge was required to further reduce Topal’s sentence to achieve parity, given the significantly more lenient sentence given to the co-offender.

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