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Al Janabe v The Queen

Al Janabe v The Queen

Case [2021] VSCA 252 9 September 2021

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0072

FERES KADAR AL JANABE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and KENNEDY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 September 2021
DATE OF JUDGMENT:	9 September 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 252
JUDGMENT APPEALED FROM:	DPP v Al Janabe & Anor [2019] VCC 1313 (Sentence)

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CRIMINAL LAW — Appeal — Sentence — Trafficking not less than large commercial quantity of drug of dependence (methylamphetamine) — Conspiracy to commit common assault — Related summary charges — Whether judge sentenced for conspiracy on wrong basis — Whether inadequate weight given to assistance to authorities — Whether individual sentences manifestly excessive — Whether sentence of 11 years and 10 months’ imprisonment with eight years non-parole manifestly excessive — Leave to appeal granted — Appeal allowed — Applicant resentenced to 10 years and six months’ imprisonment with seven years non-parole.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr O P Holdenson QC	Kaczmarek Grigor Lawyers
For the Respondent:	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

Charges, sentences and grounds of appeal

On 11 April 2019, the applicant pleaded guilty in the County Court to one charge of trafficking not less than a large commercial quantity of a drug of dependence[1] (methylamphetamine) and one charge of conspiracy to commit a common law assault.[2] He also pleaded guilty to six related summary charges, including one charge of possession of a controlled weapon,[3] one charge of committing an indictable offence whilst on bail,[4] and four charges of failure to provide access to data.[5]
[1]Drugs, Poisons and Controlled Substances Act 1981, s 71(1). The maximum penalty is life imprisonment. By virtue of s 71(2), the standard sentence is 16 years’ imprisonment.
[2]Crimes Act 1958, s 321. The maximum sentence is five years’ imprisonment.
[3]Control of Weapons Act 1990, s 6(1). The maximum sentence is one year’s imprisonment or 120 penalty units.
[4]Bail Act 1977, s 30B. The maximum sentence is three months’ imprisonment or 30 penalty units.
[5]Crimes Act 1958, s 465AAA. The maximum sentence is two years’ imprisonment.

Following a plea hearing on 23 May 2019, the judge sentenced the applicant on 16 August 2019 to a total effective sentence of 11 years and 10 months’ imprisonment, with a non-parole period of eight years, in accordance with the following table:

Charge Offence Sentence Cumulation

Indictment J11918865

1 Trafficking not less than a large commercial quantity of a drug of dependence 10 years Base

Related summary charges

4 Possessing a controlled weapon 6 months 2 months

5 Commit an indictable offence on bail 1 month

6 Failing to provide access to data 1 year 2 months

7 Failing to provide access to data 1 year 2 months

8 Failing to provide access to data 1 year 2 months

9 Failing to provide access to data 1 year 2 months

Indictment C1811971

1 Conspiracy to…

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 Al Janabe v The Queen

Details

AGLC: Al Janabe v The Queen [2021] VSCA 252
Case: [2021] VSCA 252
Decision Date: 9 September 2021

CaseChat Overview and Summary

The case of Al Janabe v The Queen involved the appellant, who was convicted on multiple drug trafficking and assault-related charges. The appellant appealed the sentence handed down by the County Court of Victoria, arguing that the judge had erred in the basis for sentencing on one of the charges and did not adequately consider the appellant's cooperation with authorities. The appellant also contended that the total sentence was manifestly excessive. The High Court of Australia granted leave to appeal and, on the appeal, allowed the appeal and resentenced the appellant to a lower term of imprisonment with a reduced non-parole period.

The primary legal issues in the appeal centred on the correctness of the sentencing process for the conspiracy charge, the weight given to the appellant's assistance to authorities, and the overall severity of the sentence. The appellant's counsel argued that the trial judge had erred in considering the conspiracy charge in isolation, without taking into account the other charges. Furthermore, it was submitted that insufficient weight was given to the appellant's cooperation with law enforcement, which included providing information that led to the arrest of other offenders and the seizure of drugs. Lastly, the appellant argued that the overall sentence of 11 years and 10 months' imprisonment, with an eight-year non-parole period, was manifestly excessive.

The High Court, in allowing the appeal, found that the trial judge had indeed erred in sentencing for the conspiracy charge by failing to consider the appellant's involvement in the overall criminal enterprise. The Court also held that the judge did not adequately weigh the appellant's assistance to authorities, which played a significant role in the investigation and prosecution of other offenders. Finally, the Court determined that the overall sentence was manifestly excessive, taking into account all the relevant factors, including the appellant's cooperation and the totality principle in sentencing. Consequently, the Court resentenced the appellant to a term of 10 years and six months' imprisonment, with a non-parole period of seven years.

In light of the findings, the High Court ordered that the appellant's sentence be reduced to 10 years and six months' imprisonment, with a non-parole period of seven years. The Court also made orders for the appellant's credit for time served to be taken into account in the calculation of the new sentence.

Orders