Siafakas v R [2016] NSWCCA 100

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Siafakas v R [2016] NSWCCA 100 Hearing dates: 22 April 2016 Decision date: 23 June 2016 Before: Leeming JA at [1]; Harrison J at [109]; Schmidt J at [113] Decision: 1. Grant leave to appeal in respect of grounds 1 and 4.

2. Appeal allowed in part.

3. Set aside the verdict of guilty on count 1.

4. Set aside the sentence imposed on 9 May 2014, and in lieu thereof, sentence the appellant:

(a) in respect of count 3, to a term of imprisonment of 9 years with a non-parole period of 5 years and 5 months;

(b) in respect of count 5, to a fixed term of imprisonment of 4 years.

Each of those sentences will commence on 3 January 2012. The earliest date on which the appellant would be eligible for release on parole will be 3 June 2017. Catchwords: CRIMINAL LAW – appeal against conviction – trial before judge sitting without a jury – two counts of knowingly taking part in manufacture of prohibited drug – appellant leased premises and participated in manufacture of precursors and prohibited drugs – appellant accepted that he was involved in the manufacture of a precursor – in one count, the precursor was also a prohibited drug – whether trial judge erred in formulating mental element of offence – whether trial judge failed to provide adequate reasons for finding that appellant was aware of the actual substance being manufactured – whether verdicts unreasonable or could not be supported by the evidence – Drug Misuse and Trafficking Act 1985 (NSW), s 24(2) Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A Criminal Code (WA), ss 22, 24 Criminal Procedure Act 1986 (NSW), s 133 Fish Resources Management Act 1994 (WA) Drug Misuse and Trafficking Regulation 2011 (NSW), Sch 1, 2, 4 Criminal Appeal Act 1912 (NSW), ss 5, 6 Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 10, 23, 24, 24A, 24B, 25, 29, 30, 33; Sch 1 Cases Cited: AK v State of Western Australia [2008] HCA 8; 232 CLR 438 Bahri Kural v The Queen (1987) 162 CLR 502 Filippou v The Queen [2015] HCA 29; 89 ALJR 776 Fleming v The Queen [1998] HCA 68; 197 CLR 250 He Kaw Teh v The Queen (1985) 157 CLR 523 M v The Queen (1994) 181 CLR 487 Ostrowski v Palmer [2004] HCA 30; 218 CLR 493 R v CWW (1993) 32 NSWLR 348; 70 A Crim R 517 R v Hendricks [2011] NSWCCA 203 R v Lau (1998) 105 A Crim R 167 R v Ruiz-Avila [2003] NSWCCA 264; 142 A Crim R 459 R v Van Xuan Bui [2005] VSCA 300 SKA v The Queen [2011] HCA 13; 243 CLR 400 Tabe v The Queen [2005] HCA 59; 225 CLR 418 W v R [2014] NSWCCA 110 Yousef Jidah v R [2014] NSWCCA 270 Zaburoni v The Queen [2016] HCA 12 Category: Principal judgment Parties: Mr Vasilios Siafakas (Appellant) Crown (Respondent) Representation: Counsel: H Dhanji SC, A Djemal (Appellant) V Lydiard (Crown)