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Youssif Tawfik v The Queen

Youssif Tawfik v The Queen

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Case Copied 21 October 2021 76 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0212

YOUSSIF TAWFIK	Applicant
v
THE QUEEN	Respondent

S EAPCR 2020 0075; S EAPCR 2020 0117

BAMBANG SAPUTRA	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, McLEISH and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 June 2021
DATE OF JUDGMENT:	21 October 2021
MEDIUM NEUTRAL CITATION	[2021] VSCA 289
JUDGMENTS APPEALED FROM:	[2018] VCC 1665 (Judge Chettle)

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CRIMINAL LAW – Appeal – Application for leave to appeal – Conviction – Conspiracy to import a commercial quantity of a border controlled drug – Whether convictions unreasonable or unable to be supported by evidence – Whether proven beyond reasonable doubt applicants knew substance being imported was a border controlled drug – Whether open to jury to reasonably exclude alternative hypothesis consistent with innocence – Alternative hypothesis not reasonable when considered in conjunction with other evidence – Leave to appeal refused – Criminal Code 1995 (Cth) ss 11.5(1), 301.1(1), Criminal Procedure Act 2009 s 276(1)(a); R v Baden-Clay (2016) 258 CLR 308 applied.

CRIMINAL LAW – Appeal – Application for leave to appeal – Sentence – Manifest excess – Whether relevant sentencing comparators illustrate error in sentencing exercise – Role of current sentencing practices in sentencing exercise – Current sentencing practices informative but not decisive in sentencing exercise – Principle of parity – Whether misinterpretation of intercepted conversation led judge to mischaracterise co-offenders’ relative roles in drug importation – Leave to appeal granted on Tawfik’s ground of manifest excess – Co-applicant Saputra resentenced to avoid creating disparity between sentences – Director of Public Prosecutions (Cth) v Brown (2017) 268 A Crim R 309, R v Yuan [2015] NSWCCA 198, Chan v The Queen [2020] NSWCCA 335, Kuo v The Queen [2018] NSWCCA 270, Director of Public Prosecutions (Cth) v Peng [2014] VSCA 128, McCraw v The Queen [2011] NSWCCA 162, Saab v The Queen [2012] VSCA 165, Nguyen v The Queen (2011) 31 VR 673 considered; Gorman v The Queen [2019] VSCA 128, Collins v The Queen [2015] VSCA 106.

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APPEARANCES:	Counsel	Solicitors
For the Applicant (Tawfik)	Mr B Walker SC with Mr P J Smallwood, of counsel	Milides Lawyers
For the Applicant (Saputra)	Mr T Game SC with Ms L Hutchinson, of counsel	Stephen Andrianakis & Associates
For the Respondent	Mr O P Holdenson QC with Ms K Breckweg, of counsel	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

MAXWELL P:

I have had the considerable advantage of reading in draft the reasons for judgment of McLeish and T Forrest JJA (‘the joint judgment’). For the reasons which their Honours give, I too would refuse both applications for leave to appeal against conviction.

I would also allow both applications for leave to appeal against sentence, and resentence the applicants as their Honours propose. I respectfully agree with the reasons and the conclusions in the joint judgment, except that I would express somewhat differently my reasons for upholding the…

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.

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Details

Case: [2021] VSCA 289
Decision Date: 21 October 2021

CaseChat Overview and Summary

The case of Youssif Tawfik v The Queen involved an appeal against a conviction and sentence for conspiracy to import a commercial quantity of a border controlled drug. The applicants, Youssif Tawfik and Saputra, sought leave to appeal against their convictions on the grounds that they were unreasonable and unable to be supported by the evidence, and that their convictions were not proven beyond reasonable doubt as they did not know the substance being imported was a border controlled drug. They also argued that it was open to the jury to reasonably exclude an alternative hypothesis consistent with their innocence. The applicants also sought leave to appeal against their sentences on the basis of manifest excess.

The legal issues before the court were whether the convictions were unreasonable or unable to be supported by the evidence, and whether the sentences were manifestly excessive. The court considered whether the alternative hypothesis consistent with innocence was reasonable when considered in conjunction with other evidence, and whether the sentencing exercise had taken into account relevant sentencing comparators and current sentencing practices. The court also considered whether there had been a misinterpretation of an intercepted conversation that led the judge to mischaracterise the co-offenders’ relative roles in the drug importation.

The court held that the convictions were not unreasonable or unable to be supported by the evidence, and that it was not open to the jury to reasonably exclude an alternative hypothesis consistent with innocence when considered in conjunction with other evidence. The court also held that the sentences were not manifestly excessive, although there had been a misinterpretation of an intercepted conversation that led the judge to mischaracterise the co-offenders’ relative roles in the drug importation. The court granted leave to appeal on the ground of manifest excess and resentenced Saputra to avoid creating a disparity between the sentences. The court held that current sentencing practices were informative but not decisive in the sentencing exercise, and that the principle of parity required that sentences be proportionate to the gravity of the offence and the offender’s culpability.

The final orders of the court were that leave to appeal was granted on Tawfik’s ground of manifest excess, and Saputra was resentenced to avoid creating a disparity between the sentences. The convictions were upheld, and the sentences were varied to reflect the resentence of Saputra.

Orders