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Alavy v R

Alavy v R

Case [2014] VSCA 25 3 March 2014

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0150

SEYED JAVAD ALAVY
	Appellant
v
THE QUEEN
	Respondent

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JUDGES	WEINBERG and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	13 February 2014
DATE OF JUDGMENT	3 March 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 25
JUDGMENT APPEALED FROM	DPP v Alavy (Unreported, County Court of Victoria, Judge Hampel, 11 July 2013)

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CRIMINAL LAW – Sentence – Guilty plea – Appellant sentenced to seven years’ imprisonment, with non-parole period of five years, for importing marketable quantity of border controlled drug (methamphetamine) – Specific deterrence – Whether sentencing judge fell into error by using mitigating factors in favour of accused as basis for finding that specific deterrence to be given ‘some weight’ in sentencing – Whether sentence outside permissible range – Appeal dismissed on both grounds.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D D Gurvich	Turnbull Lawyers
For the Crown	Ms M Brown	Director of Public Prosecutions (Cth)

WEINBERG JA
COGHLAN JA:

The appellant pleaded guilty, in the County Court at Melbourne, to one charge of having imported a marketable quantity of a border controlled drug (methamphetamine), contrary to s 307.2(1) of the Criminal Code Act 1995 (Cth). He was sentenced on 11 July 2013 as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Import marketable quantity of border controlled drug (methamphetamine) 25 years or 5000 penalty units 7 years N/A

Total Effective Sentence: 7 years’ imprisonment

Non-Parole Period: 5 years

Pre-sentence Detention Declared: 178 days

s 6AAA Statement: 9 years ’ imprisonment with a non-parole period of 7 years

Other orders: Nil

Pursuant to leave granted by Priest JA, the appellant appeals against sentence on the following grounds:

1. The learned sentencing judge erred in her approach to the principle of specific deterrence.
2. The sentence is manifestly excessive.

Circumstances of the offending

The appellant was born in Iran and migrated to this country in 2006. On 22 December 2012, Australian Customs authorities examined a DHL Express parcel that had been sent from Tehran, Iran. The package was addressed to a ‘Sam Smith’ of ‘Electric Ltd Co, 2^nd Floor Office Melbourne, 24 Santa Rosa Boulevard, Doncaster East, Victoria 3109’. It was described as containing ‘High Temperature Armature Wire’ but concealed within it were 495.5 grams of methamphetamine, with a purity of 80.3% (pure weight of 397.8 grams).[1]
[1]The judge noted that the market value was estimated to be a minimum of $228,800 wholesale, which equated to a street value of approximately $495,500.

Between 27 December 2012 and 13 January 2013 the appellant made a number of telephone calls (both personally and by another person using a mobile telephone that was registered to a ‘John Smith’) to DHL and Customs enquiring as to the whereabouts of the parcel. During that period the appellant remitted large amounts of money on three separate occasions to a ‘Farzad Tooba’ in Tehran. There were sums of $10,000, $10,500 and $12,500 sent to Iran.

On 8, 12 and 13 January 2013,…

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 Alavy v R

Details

AGLC: Alavy v The Queen [2014] VSCA 25
Case: [2014] VSCA 25
Decision Date: 3 March 2014

CaseChat Overview and Summary

The appellant, Alavy, appealed against his sentence in the High Court, contesting the decision made in the Court of Appeal. Alavy was found guilty of importing a marketable quantity of methamphetamine, a border-controlled drug, and was sentenced to seven years in prison, with a non-parole period of five years. The primary legal issues in this case were whether the sentencing judge erred in using mitigating factors in favour of the appellant as the basis for finding that specific deterrence should be given some weight in sentencing, and whether the sentence was outside the permissible range.

The High Court held that the sentencing judge did not fall into error by considering the mitigating factors in relation to the appellant's specific deterrence. The court found that the sentencing judge was entitled to take into account the appellant's personal circumstances, including his age, background, and the likelihood of rehabilitation, in determining the appropriate sentence. The court further held that the sentence imposed was within the permissible range, and the sentencing judge had appropriately balanced the various considerations in arriving at the final sentence.

The court dismissed the appeal on both grounds, affirming the original sentence. The High Court found that the sentencing judge had correctly applied the relevant legal principles in determining the appropriate sentence and that the sentence imposed was neither manifestly excessive nor inadequate. The appeal was thus dismissed, and the original sentence of seven years' imprisonment, with a non-parole period of five years, was upheld.

Orders