Trikilis v The Queen [2010] VSCA 241 (23 September 2010)

Last Updated: 23 September 2010

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 0796 of 2009

GEORGE TRIKILIS	Applicant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE and WEINBERG JJA and T FORREST AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	8 September 2010
DATE OF JUDGMENT	23 September 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 241
JUDGMENT APPEALED FROM	R v Trikilis (Unreported, 3 September 2009, County Court of Victoria, Judge Chettle)

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CRIMINAL LAW – Application for leave to appeal against sentence – Four counts of trafficking in a drug of dependence (MDMA, testosterone, cocaine and methylamphetamine) – Whether sentencing judge improperly took subsequent offending into account in considering prospects of rehabilitation – Application for leave to appeal refused.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis	Valos Black & Associates
For the Crown	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA

WEINBERG JA

T FORREST AJA:

1 The applicant was part of an active drug trafficking ring in the northern suburbs of Melbourne. He lived with two co-accused, Papadopoulos and Harrington, at 57 Pearson Street Brunswick. From that address they organised the purchase and sale of MDMA (ecstasy), cocaine, methylamphetamine and various types of steroids. The residents of 57 Pearson Street and their associates did not conduct a single organised business. Rather, they were a loose collection of like-minded individuals. Each of them trafficked on their own behalf to each other and to the broader public. So far, fifteen members of the ring have been dealt with by the courts.

2 The applicant pleaded guilty and was sentenced before the County Court as follows:

Count 1: Trafficking in MDMA two years six months’ imprisonment.

Count 2: Trafficking in testosterone six months’ imprisonment.

Count 3: Trafficking in cocaine two years’ imprisonment.

Count 4: Trafficking in methylamphetamine six months’ imprisonment.

Three months of the sentence imposed on count 2, 12 months of the sentence imposed on count 3 and three months of the sentence imposed on count 4 were ordered to be served cumulatively upon the sentence imposed on count 1 and upon each other. Thus, an effective term of imprisonment of four years was imposed with a minimum non-parole period of two years and nine months.

3 The applicant’s offending occurred between December 2006 and April 2007 and involved dealing in 450-490 grams of MDMA (2200 ecstasy tablets), 405 grams of cocaine, 1500 grams of testosterone and 150 grams of methylamphetamine.[1]

4 The application for leave to appeal was deemed dismissed, pursuant to a letter from the Court of Appeal Registry dated 4 June 2010, for the applicant’s failure to file his full statement of grounds and outline of submissions. Therefore the application for leave to appeal against sentence must be reinstated prior to the determination of the application itself. We would reinstate the application for leave to appeal.

5 Counsel for the applicant sought to argue one ground of appeal only. It reads:

The learned sentencing judge erred by having regard, in imposing sentence, to a matter (or matters) with which the applicant had been charged, but of which he had neither been:

(a) convicted; nor

(b) found guilty.

In plainer language, the applicant contends that his Honour wrongly took into account that the applicant had been charged with further drug offences whilst on bail and used that information when assessing his prospects for rehabilitation.

6 We consider there is little merit to this argument. An examination of the plea transcript demonstrates the following:

• his Honour was necessarily made aware of the subsequent charges because the applicant had been refused bail on those charges, and an issue arose on the plea as to the true pre-sentence detention;

• the subsequent charges involved sales of ecstasy tablets and amphetamines to an undercover policeman. Four transactions were said to have occurred whilst the applicant was on bail for the offences to which this appeal relates; and

• counsel for the applicant on the plea quite properly informed his Honour in relation to the subsequent charges that, whilst there was a dispute as to the amounts that may have been trafficked, there was no dispute as to the fact of the trafficking itself. He agreed with his Honour’s observation that this was ‘a settlement job’.

7 In his sentence, whilst referring to the subsequent charges, his Honour stated:

The only relevance of that matter to the matter for which I am to sentence you, is that it reflects on your prospects for rehabilitation.

8 We can discern no error in his Honour’s approach. He had before him agreement between counsel as to the fact of the subsequent charges, and a concession by the applicant’s counsel as to the relevant live issues relating to those charges. That information was properly before him and he was entitled to use it as he did.

9 The application for leave to appeal against sentence is refused.

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[1] Count 4, the methylamphetamine count, involved aiding and abetting Papadopoulos in his trafficking of that drug.