and Dritan Mehmeti v Director of Public Prosecutions (Cth)
[2014] VSCA 131
•26 June 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2013 0258 | |
| DRITAN MEHMETI | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Respondent |
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| JUDGES | WEINBERG and SANTAMARIA JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 28 May 2014 |
| DATE OF JUDGMENT | 26 June 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 131 |
| JUDGMENT APPEALED FROM | DPP (Cth) v Hiseni & Anor (Unreported, County Court of Victoria, Judge Dean, 2 May 2013) |
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ELECTION TO HAVE AN APPLICATION DETERMINED BY THE COURT OF APPEAL PURSUANT TO S 315(2) OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Sentence – Election against refusal by Deputy Registrar (Legal) of application for extension of time – Applicant pleaded guilty to one charge of possession of a border-controlled drug in a marketable quantity – Sentence of 5 years and 6 months – Non-parole period of 3 years and 4 months – Delay of almost eight months in seeking leave to appeal.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr OP Holdenson QC | Robert Stary Lawyers |
| For the Respondent | Mr DD Gurvich | Director of Public Prosecutions (Cmmth) |
WEINBERG JA
SANTAMARIA JA:
In April 2013, Dritan Mehmeti, the applicant, with his co-offender, Adem Hiseni (‘Hiseni’), pleaded guilty, in the County Court at Melbourne,[1] to one charge of possession of a marketable quantity of an unlawfully imported border-controlled drug, contrary to s 307.6(1) of the Criminal Code Act 1995 (Cth) (‘Criminal Code’). He was sentenced on 2 May 2013 as set out in the following table.
[1]DPP (Cth) v Hiseni & Anor (Unreported, County Court of Victoria, Judge Dean, 2 May 2013) (‘Reasons’).
Charge Offence Maximum
Penalty
Sentence 1 Possession of a marketable quantity of drug
25 years 5 years and 6 months Non-ParolePeriod: 3 years and 4 months Pre-sentencedetentiondeclared:
103 days
6AAA Statement: 7 years’ imprisonment with a non-parole period of 5 years.
Background
On 23 March 2011, the applicant, Hiseni and Sajmir Beqiri (‘Beqiri’) were all arrested after police surveillance of the importation of cocaine into Australia. All were charged with the offence of manufacture of a marketable quantity of a controlled drug contrary to s 305.4(1) of the Criminal Code as well as with possession of a marketable quantity of the drug. At his committal mention on 16 November 2011, Beqiri pleaded guilty to both offences. On 16 and 17 November 2011, there was a committal proceeding for the applicant and Hiseni.
In February 2012, in the County Court, Beqiri was sentenced on both charges. Subsequently, and notwithstanding his plea of guilty, Beqiri appealed against his conviction on the charge of manufacture, and against his sentence on the charge of possession. While this was occurring, the proceedings against the applicant and Hiseni were delayed.
In July 2012, this Court granted Beqiri leave to appeal against his conviction and sentence. On 4 March 2013, the Court allowed his appeal against conviction and re-sentenced him on the charge of possession.[2]
[2]Beqiri v The Queen (2013) 271 FLR 220. Beqiri was resentenced to 5years and 6 months’ imprisonment with a non-parole period of 3 years and 4 months on the charge of possession.
In May 2013, at a joint plea hearing in the County Court, the applicant and Hiseni were both sentenced on the charge of possession. Each was given the same sentence as the other. That sentence was the same as the sentence to which this Court had imposed upon Beqiri when it re-sentenced him.
Later that month, Hiseni sought leave to appeal against his sentence. The applicant was aware of the time limits that apply to applications for leave to appeal against sentence, but made no application for such leave. In July 2013, Hiseni’s application for leave to appeal was refused by a single judge of the Court. In August 2013, he elected to renew his application. Hiseni referred to three matters that should have led to his being given a lower sentence than both Beqiri and the applicant: each of the other men was in possession of the cocaine for a longer period of time than he was, the others had a proprietary interest in the cocaine (which he did not) and that they both had much more to gain. He also said that the sentencing judge had not taken proper account of the delay that he and the present applicant had suffered while they awaited the resolution of Beqiri’s applications and, finally, insufficient attention had been given to the circumstance that his involvement was less than that of the present applicant. In October 2013, Hiseni’s renewed application was heard and dismissed.[3]
[3]Hiseni v DPP (Cth) [2013] VSCA 301.
Finally, on 20 December 2013, the applicant made an application for an extension of time to appeal against his sentence. His solicitor has affirmed in an affidavit that, notwithstanding that the applicant has always been aware of his rights and the time limits that apply to them, he chose not to make his present application until the outcome of Hiseni’s application was known. His solicitor has also deposed to his belief that the applicant’s position ‘substantially differs’ from that of Beqiri and Hiseni.
In his proposed grounds of appeal, the applicant has said that the sentencing judge had failed to have proper regard to the effect of delay in sentencing and to the fact that the applicant’s involvement was less significant than that of Beqiri.
For the reasons that follow, the application for an extension of time should be refused.
Present application
An application for an extension of time in which to appeal against a sentence was filed on 20 December 2013.
On 21 January 2014, the Deputy Registrar refused the application to extend time. He said that the delay had been for more than eight months, and that it was the result of a deliberate decision, on the part of counsel, who was awaiting the outcome of the appeals of the co-accused: Beqiri and Hiseni. The Deputy Registrar referred to Smith v The Queen[4] and Jopar v The Queen.[5]
[4][2013] VSCA 310.
[5](2013) 275 FLR 454.
Background to the present application
The plea hearing in the County Court took place on 26 April 2013. On that occasion, the judge received pleas of guilty of both Hiseni and the applicant. Then, he heard the plea of Hiseni followed by that of the applicant. An agreed summary of facts was tendered.
The circumstances of the offending, as well as the personal circumstances of the applicant and the judge’s sentencing remarks are summarized in the applicant’s written case.
Circumstances of Arrests and Seizure of Drugs
The applicant was arrested with co‐accused Adem Hiseni on 23 March 2011 at […] Truganina. The remaining co‐accused, Sajmir Beqiri, was arrested on 23 March 2011 as he was driving towards the Truganina property.
A search of [the Truganina property] was conducted on 23 March at which time the following observations were made;
i)In the south‐east rear bedroom there were six tubs which contained a liquid mixture.
ii) A pedestal fan was positioned above each tub.
iii) The tubs contained approximately 45 – 60 litres of liquid.
iv)Four trays containing damp and shredded towels and clothing were located in the courtyard.
Presumptive testing of the liquid recovered from the tubs indicated the presence of cocaine and sodium bicarbonate. The liquid mixture held in the tubs contained a total of 1,692.92 grams of cocaine.
The cocaine had been imported to Australia impregnated within towels and clothing. A very low level of cocaine, less than 0.1 grams, was detected in the damp and shredded cloth.
Background Evidence
The suitcase containing the clothing and towels was imported into Australia by the Chinese girlfriend of a person by the name of Bakshin Gashi. Sajmir Beqiri knew Gashi having previously employed him. Sajmir Beqiri paid for airline tickets for Gashi and his girlfriend to travel from South America to Australia.
Sajmir Beqiri received the suitcase containing the clothing and towels impregnated with cocaine in January 2012. He kept the suitcase in his garage for approximately two months.
Circumstances of offending
On 18 March 2011 Adam Hiseni arrived at Melbourne Airport having travelled from the United States. The purpose of his trip was to extract the cocaine from the impregnated towels and clothing.
The Applicant and Beqiri met Hiseni when he arrived at Melbourne Airport.
Beqiri had been the subject of surveillance and his telephone had been lawfully intercepted by investigating police.
Hiseni’s impending arrival was discussed between the Applicant and Beqiri. Beqiri arranged with his friend, Paulo Churiliani of […] Brunswick for that name and address to be given to Immigration authorities by Hiseni upon his arrival. The Applicant advised Hiseni of these arrangements via SMS.
The premises at […] Trugannina were owned by Beqiri’s wife, Alexandra Benello. Beqiri arranged for the tenant of those premises, Michelle Doherty, to temporarily move to his home in Templestowe so that the premises in Trugannina would become vacant for the purposes of the extraction of the cocaine.
Beqiri knew Godfrey Fernandez who was the director of Jerome Mobile Engineering […] Dandenong. Beqiri arranged with Fernandez for the collection of chemicals that were required to convert the cocaine into a solid form.
On 19 March the applicant, Beqiri and Hiseni went to Bunnings where they purchased equipment and chemicals to assist in the extraction and conversion process. On 21 March 2011 planning and arrangements for the chemical extraction and conversion of the cocaine continued.
On 22 March the applicant, Beqiri and Hiseni were observed in the vicinity of [the Dandenong property]. Beqiri was seen to enter the premises, Mehmeti was observed in a car nearby.
As at the day of arrest, 23 March 2011, it was determined that the extraction process had only just commenced. The cocaine remained in a liquid state and was beginning to convert to a solid form with an evaporative technique.[6]
[6]Applicant’s Written Case for application for leave to appeal against sentence, 20 December 2013, [2]-[16] (citations omitted).
Personal circumstances
The Applicant was born on 4 February 1971. His personal background was set out in the Report of Patrick Newton, Forensic and Clinical Psychologist, which was adopted as accurate for the purposes of his plea. It disclosed a refugee experience of deprivation and persecution.
The Applicant migrated to Australia in 1997 with his then wife and young child. He demonstrated a strong work ethic and developed skills that enabled him to work in the construction industry. Although he separated from his wife in 2005 he remained on amicable terms and maintained a close bond with his now 15 year old son with whom he spoke daily.
The Applicant had one prior appearance in the Local Court at Parramatta in May 2002 in relation to one charge of having goods in custody suspected of having been stolen and was released upon entering into a bond in the sum of $250 to be of good behaviour. He otherwise had no prior convictions. The Applicant also relied upon the effect that the delay in the resolution of these proceedings had on him.[7]
[7]Ibid [17]-[19] (footnote omitted).
[Submissions that the applicant made in the County Court]
The Applicant submitted that a distinction should be drawn between he and Beqiri’s role in the offending. It was submitted that the objective circumstances established that Beqiri had been involved with the cocaine at a time either at or shortly after it was imported. There was no evidence that the Applicant had become involved at any time prior to the 13 March 2011.
It was further submitted that although it was conceded that the Applicant played an important role in the offending that he was not the driving force behind the offending in the way that Beqiri clearly was.
The Applicant relied on five particular factors in mitigation. The delay in sentencing him and the punishing effect that that had on him, his more limited role in the offending, his personal circumstances including his history of persecution, his dysthymic disorder and psychological vulnerability and his very good prospects for rehabilitation. The Defence submitted that a sentence of imprisonment less than that which was imposed on Beqiri was appropriate.
The Crown submitted that there was no basis for imposing a lesser sentence than that which was imposed on Beqiri particularly as the principles in Verdins case were engaged in respect of his sentence.[8]
[8]Ibid [20]-[23] (citation omitted).
[The reasons of the sentencing judge]
In his reasons for sentence His Honour stated that he was not in possession of sufficient detail on the material before him to make specific findings as to the roles played by each of the offenders. He proceeded on the basis that each played an important role.
His Honour also found that he was not satisfied that the distinction between the Applicant and Beqiri was such as to justify a different sentence being imposed to that of Beqiri. Accordingly His Honour sentenced the Applicant to the same sentence as was imposed on Beqiri after his successful appeal.[9]
[9]Ibid [24]-[25].
In its written case dated 20 February 2014, the respondent took no issue with paragraphs [2] to [25] of the applicant’s written case.
Chronology
In tabular form, the relevant dates are as follows:
Date
Event
23 March 2011
Arrest of three co-offenders
16 November 2011
Beqiri pleads guilty at committal mention to offence of manufacture and possession
16 & 17 November 2011
Committal hearing in relation to Hiseni and the applicant
12 February 2012
Beqiri enters a plea before County Court to charges of possession of a marketable quantity and manufacture of a marketable quantity of drug
20 February 2012
Beqiri sentenced in County Court in respect of both charges
12 June 2012
The applicant and Hiseni were to appear for trial but trial remained in County Court Reserve List
11 July 2012
Weinberg JA grants Beqiri leave to appeal against conviction and sentence
18 February 2013
Hearing of Beqiri’s appeal against conviction and sentence
4 March 2013
Court of Appeal allows Beqiri’s appeal against conviction and resentences him on remaining charge
26 April 2013
Hiseni pleads guilty to the charge of possession
(shortly thereafter)
The applicant indicates his willingness to plead guilty to the charge of possession
2 May 2013
Applicant and Hiseni sentenced in the County Court
27 May 2013
Hiseni applies for leave to appeal against his sentence
24 July 2013
Buchanan JA refuses Hiseni leave to appeal
5 August 2013
Hiseni elects to renew his application
18 October 2013
Hearing and determination and dismissal of Hiseni’s application for leave to appeal against sentence
20 December 2013
Applicant applies for extension of time to appeal against sentence
The sentencing of the co-accused
Beqiri
On 10 February 2012, Beqiri pleaded guilty in the County Court at Melbourne to two drug offences under the Criminal Code. Count 1 on the Indictment was a charge of possession of a marketable quantity of an unlawfully imported border controlled drug, cocaine;[10] and count 2 charged the manufacture of a marketable quantity of a controlled drug, cocaine.[11]
[10]Criminal Code Act 1995 (Cth) s 307.6(1).
[11]Criminal Code Act 1995 (Cth) s 305.4(1).
Following a plea, on 20 February 2012, Beqiri was sentenced to be imprisoned for six years on the first count and three years on the second. The sentence on count 2 was ordered to be wholly concurrent with the sentence on count 1; and a non-parole period of three years and nine months was fixed.
Initially Beqiri sought leave to appeal against sentence only. Some time later, however, Beqiri sought an extension of time within which to file an application for leave to appeal against conviction, and that application was granted by the Registrar.
Subsequently, on 11 July 2012, Weinberg JA granted Beqiri leave to appeal against both conviction and sentence.
Beqiri succeeded in his appeal against his conviction for ‘manufacturing a controlled substance’. He was resentenced by the Court of Appeal.[12] He was resentenced for the offence to which both the applicant and Hiseni pleaded guilty. He was sentenced to be imprisoned for five years and six months and ordered that he serve a period of three years and four months before being released on parole. A declaration was made under s 6AAA of the Sentencing Act 1991 (Vic) that, but for the plea of guilty, the Court would have imposed a sentence of seven years’ imprisonment with a non-parole period of five years. Priest JA gave the leading judgment. In resentencing Beqiri, Priest JA said:
[12]Beqiri v The Queen (2013) 271 FLR 220. See s 277(3) of the Criminal Procedure Act 2009 (Vic).
It is plain that the sentencing judge was troubled by the fact that the appellant had pleaded guilty to both possession and manufacture, and queried whether, in the circumstances of this case, the two could stand together. He was, however, faced with pleas of guilty and was thus somewhat powerless to do other than express his disquiet.
The sentencing reasons were careful. His Honour stated that whilst the appellant was not to be sentenced for the importation of the cocaine into Australia, he was in possession of it shortly after its arrival and was directly involved in the conversion of the substance into a form that would allow for its distribution. The judge also found that the appellant offended for financial gain and, although he was not able to determine the extent to which he would have profited from the offending, he did not accept that he expected to receive $10,000 following the completion of the chemical process, as was submitted by counsel. The judge found that the appellant’s role in the offending was significant and that he expected to profit more considerably than the sums submitted by counsel.
The appellant is now aged 40. He came to this country from Albania, via Italy, in 1999. He worked as a painter and builder until injured in 2007. He is married with two young children. He has no prior convictions.
There were a number of mitigating factors which the sentencing judge referred to and accepted, including the early pleas of guilty; some limited admissions to police; the absence of prior convictions; a good work history; family support; and family hardship. Significantly, the judge found the existence of a psychological condition (anxiety, depression and panic attacks) to be causally connected to offending, thus leading to reduced moral culpability and a concomitant moderation of general deterrence. Importantly, he also found that imprisonment would be more onerous for the appellant due to his psychological condition.
During argument on the appeal, without objection from the respondent, the Court received an updated report from a forensic psychologist, Pamela Matthews, dated 30 December 2012. The report indicated that the appellant continued to suffer from agoraphobia, against a background of generalised anxiety, but that his emotional state had significantly worsened following incarceration, with the emergence of somatic symptoms. Since the discretion as to sentence is reopened, it is legitimate to pay due regard to the fact that the appellant’s psychological condition has worsened since being imprisoned.
I need not recite the factors that the Court is required to bear in mind when imposing sentence. Many are set out in s 16A of the Crimes Act 1914 (Cth), and I have taken them into account. This was a serious offence, involving the possession of a substantial quantity of cocaine, thus enlivening general deterrence as an important consideration. No sentence other than imprisonment is appropriate in the circumstances.
Synthesising, as best I am able, all relevant features, I would sentence the appellant on count 1 to be imprisoned for five (5) years and six (6) months, and would order that he serve a period of three (3) years and four (4) months before being released on parole. I would declare pre-sentence detention of 712 days.[13]
Hiseni
[13]Beqiri v The Queen (2013) 271 FLR 220, 232[60]-233[66].
Hiseni was sentenced on the same day as the applicant. Each was given the same sentence. Hiseni also made application for leave to appeal against that sentence on the proposed ground that:
The sentence imposed offends against the sentencing principle of parity when compared with the sentences imposed upon two co-accused, being Sajmir Beqiri and Dritan Mehmeti, for the same offence.
On 24 July 2013, Buchanan JA refused Hiseni leave to appeal against the sentence. In his reasons, Buchanan JA said:
I do not think it can be said that the applicant’s role was of less importance than that of his co-offenders. The role of the offenders differed: the production of the cocaine was the work of the applicant; his co-offenders engaged him and furnished him with the ingredients necessary to produce the cocaine. In my opinion, the sentencing judge was entitled to treat their culpability as broadly equivalent. I do not regard the different bases upon which they derived a profit from the enterprise as requiring the imposition of different sentences.
Personal circumstances and available mitigating factors of the offenders were not identical although they shared several characteristics. Each offender entered a plea of guilty at the earliest reasonable opportunity, had no prior convictions, were of like age, had the support of their families and would suffer hardship as a result of being incarcerated, and had reasonable prospects of rehabilitation. The applicant and Mehmeti were able to invoke the delay caused by the prosecution proceeding with the charge of manufacture. On the other hand, this factor was to be balanced against the fact that Beqiri had suffered a deterioration in his mental health whilst in custody. I do not think that the applicant's heart condition and the fact that he is serving imprisonment in a foreign country arguably required the imposition of a different sentence.[14]
By notice dated 5 August 2013, Hiseni elected to renew the application. On 18 October 2013, the Court refused him leave to appeal.[15]
[14]Hiseni v DPP (Cth) (Unreported, Supreme Court of Victoria, Court of Appeal, Buchanan JA, 24 July 2013) [10]-[11].
[15]Hiseni v DPP (Cth) [2013] VSCA 301.
In refusing Hiseni’s application for leave, the Court referred to the resentencing of Beqiri. Coghlan JA (with whom Weinberg JA agreed) said:
After the Court of Appeal concluded that it was not open as a matter of law for Beqiri to have been convicted of the crime of manufacturing the drug, notwithstanding his plea of guilty, he fell to be re-sentenced for the offence to which the two co-offenders subsequently pleaded guilty. It is clear that Beqiri received a reduction in sentence because of his psychological condition(s) which the learned sentencing judge had found to be causally connected to the offending. Since Beqiri fell to be re-sentenced, the Court of Appeal received further material which demonstrated that his condition(s) had been exacerbated by his time in detention.[16]
[16]See Beqiri v The Queen (2013) 271 FLR 220, 232[60]-233[66].
It must be assumed that, absent that consideration, Beqiri would have received a longer sentence.
It was not suggested on the plea that the applicant or Mehmeti could have a reduction in sentence as a result of any psychological condition other than the fact that each had some psychological deficits which would make their time in prison more onerous.
The learned sentencing judge, having made the remarks which he did about the roles played by each of the co-offenders, later said,
As I have already observed, the Court of Appeal sentenced your co-offender Sajmir Beqiri to five years and six months imprisonment, with a non-parole period of three years and four months. In his case I concluded that the principles set out by the Court of Appeal in R v Verdins (2007) 16 VR 269 were engaged, and the Court of Appeal heard evidence that the condition that Beqiri suffered from had deteriorated whilst he was in prison. Whilst there are factors in your respective cases that weigh in your favour in mitigation that were not present in the case of Beqiri, in particular the issue of delay, in my opinion, these factors are not such that I should impose a different sentence on either of you to that imposed by the Court of Appeal upon him.[17]
I am satisfied that it was open to his Honour to conclude that the role of each of the co-offenders was close to equal. The fact that the applicant had come from the United States to use his ‘expertise’ to extract the cocaine was very significant. It was for reward. It was not clear whether Beqiri and Mehmeti were involved as the actual proprietors of the enterprise, or whether they too had been employed to perform specific roles. The learned sentencing judge did conclude that Beqiri was to receive more than the $10,000 that he had asserted he was to gain.
Although the evidence of isolation and separation from family was clear in the case of the applicant, the co-offender Mehmeti was also isolated.
The applicant is separated from his family and his term of imprisonment will be more burdensome as a result. However, did come to Australia for the purpose of removing the cocaine from the clothing, he took the risk, and it is fair to assume that his reward would have been significant. That is the risk that exists when enterprises of this kind are undertaken It was put by his counsel on the plea that he was to receive ‘thousands of dollars’. That is not to say that I proceed on the basis that the applicant’s involvement was, in his perception, other than a matter of economic necessity. I regard him as being in a different position to a courier who is rewarded for bringing drugs into Australia for a relatively small fee.
The distinction between both the applicant and Mehmeti and Beqiri is that as observed by the learned sentencing judge there has been significant delay. In the case of the applicant who has been remanded in custody since his arrest, the most important feature of delay was that he had these matters hanging over him. Although Mehmeti was on bail for a considerable period, he was left in a similar position.
The counterbalance between the reduction in sentence received by Beqiri for his psychological difficulties and the reduction in sentence for the applicant and Mehmeti for delay seems reasonable.
Although there is some evidence from which it might be inferred that Beqiri was higher in the hierarchy than the other two offenders, there is little or no evidence to demonstrate that Mehmeti, although he was the original contact for the applicant, was anything other than a person acting on the basis of being paid a fee for his service. I do not accept that there is any real distinction to be drawn between the applicant and Mehmeti for the purpose of sentencing.[18]
[17]Reasons [14].
[18]Hiseni v DPP (Cth) [2013] VSCA 301, [14]-[23].
Relevant principles
In Efandis v The Queen,[19] the Court considered the legal principles to be applied in cases involving significant delay. It said:
[19][2014] VSCA 42.
In R v Darby Gowans J (with whom Lush J and Crockett J both agreed), after referring with approval to what had earlier been said by Little J in R v Varney, set out the principles which govern applications for extension of time in criminal appeals. His Honour said:
(1) the prescription by the statute of the time limit for giving notice is intended to secure finality and compliance is intended to be required in the ordinary case;
(2) extension of the time is a matter for the discretion of the Court, and the applicant must put material and considerations before the Court which will persuade it to exercise its discretion in favour of an extension;
(3) rigid restrictions cannot be imposed on the exercise of discretion but in general the Court will require special and substantial reasons for extending the time;
(4) the longer the time which elapses since the expiration of the statutory period and the more the changes that have taken place in the meantime, the more exceptional will the circumstances put before the Court have to be;
(5) it is the practice of the Court not to grant any considerable extension of time unless it is satisfied that there are such merits in the proposed appeal that it would probably succeed;
(6) a reasonably satisfactory account of the failure to comply with the statutory requirement needs to be forthcoming.
In R v O’Keefe these observations were specifically approved by the Full Court. The principles laid down in Darby remain good law today.[20]
[20]Ibid [35]–[36] (citations omitted). See also R v Davis (2003) 6 VR 538, 539[5]; Ali Haidari v The Queen [2014] VSCA 91, [39].
In R v Davis,[21] after referring to R v Darby,[22] and R v O’Keefe,[23] Winneke ACJ said:
In the case of O'Keefe, the Court, having referred to those principles set forth by Gowans, J., went on (at p.5 of the report):
An applicant who has been dilatory or has acted in such a way as to indicate that he does not intend to appeal has small, if any, claim to the exercise of the discretion of the Court in his favour. On the other hand, if the applicant has acted promptly, his case will be considered very differently. Where there has been a long delay the practice of the Court has not been to grant the extension sought unless it is clear that the decision is attended with such doubt as to make it probable that the appeal will succeed.
It is to be emphasised that the Court's decisions upon applications of this kind involve discretionary considerations, and the longer the time which elapses between the closure of the statutory time limit and the date of the application, the more exceptional will the circumstances have to be. Certainly the applicant must, in any case, put forward material to demonstrate satisfactory reasons for the failure to comply with the time and also to show, in the event that the time lapse is considerable (as it is in this case), that there are such merits in the proposed appeal that it will probably succeed. [24]
[21](2003) 6 VR 538.
[22](Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Gowans, Lush and Crockett JJ, 2 May 1975).
[23][1979] VR 1.
[24](2003) 6 VR 538, 539[5]-[6].
The reason for the delay in making the present application
Has the applicant provided satisfactory reasons for failing to comply with the time limits for an application for leave to appeal against sentence?
In the present case, the applicant waited almost eight months to file his application to apply for an extension of time.[25] That is, on any view, a substantial delay.
[25]The applicant was sentenced in the County Court on 2 May 2013. His application for an extension of time to appeal against sentence was filed on 20 December 2013.
The applicant relied upon the affidavit of Matthew Goldberg affirmed 10 December 2013. In his affidavit, Mr Goldberg explained the reason for the delay in the applicant making his application for leave to appeal against sentence. He said:
3.Mr Mehmeti was sentenced by Judge Dean in the County Court on 2 May 2013.
4.Consideration was given at the time to the pursuit of an appeal against sentence and Mr Mehmeti provided instructions for the drafting of a written case.
5.A written case was drafted with the assistance of Senior Counsel who had appeared at the plea.
6.The written case was returned in draft form to our office by Senior Counsel within time for filing and it was to be finalised and submitted.
7.The written case however remained in draft form and was not filed at that time.
8.Adam Hiseni, co-accused, was heard by Justice Bongiorno (sic) upon an application for leave to appeal against sentence. A representative of our office was present for the hearing.
9.The application for leave to appeal against sentence by Hiseni was unsuccessful however I was informed that he had elected to be heard by the Court of Appeal as to the appeal against sentence nonetheless.
10.Our office waited upon the outcome of Hiseni’s appeal against sentence before pursing this application.
11.I have now had regard to Adem Hiseni v DPP (Cth) [2013] VSCA 301.
12.Although the appeal by Hiseni was unsuccessful there are matters arising that are, axiomatically, relevant to Mr Mehmeti and that do not diminish his prospects of success on appeal.
13.The written case has now been settled having regard to the Court of Appeal’s judgment in Adem Hiseni v DPP (Cth) [2013] VSCA 301.
14.I am mindful of the relevant judgment Damien John Smith v The Queen [2013] VSCA 310 and I am of the belief that there remains a likelihood of success upon appeal in this matter.
15.Mr Mehmeti’s position substantially differs from that of the co-accused Sajmir Beqiri and Adem Hiseni.
16.The effect of delay was explored in Adem Hiseni v DPP (Cth) [2013] VSCA 301 however Mr Mehmeti’s experience is markedly and quantitatively different.
17.The issue of distinction in role was also explored in Adem Hiseni v DPP (Cth) [2013] VSCA 301 however there are matters identified with the settled written case that address and enliven the point.
18. Mr Mehmeti has unwaveringly made clear his instructions to pursue an appeal against sentence and it is sought that he be granted leave to appeal out of time.
In an affidavit sworn 16 January 2014, a solicitor employed by the Commonwealth Director of Public Prosecutions (‘CDPP’), deposed that at no time from the date the applicant was sentenced until the date the CDPP was advised by the Court of the filing by the applicant of the documents relating to the present application on 20 December 2013 was the CDPP advised by either the applicant or any legal practitioner acting on his behalf that he intended to make an application for leave to appeal against sentence. In particular, the CDPP has received no communication whatsoever from the applicant’s present solicitor in relation to the applicant’s case since his sentence.
It is not just the delay since the applicant was sentenced. This Court disposed of Hiseni’s application on 18 October 2013. Yet, the applicant did not make his present application until 20 December 2013.
The proposed grounds of appeal
Notwithstanding that nothing like an adequate explanation has been given for the delay in making the present application, it is appropriate, we consider, in determining whether an extension of time should be granted, to examine the proposed grounds of appeal. They are :
GROUND 1
The Sentencing Judge failed to have proper regard to the effect of delay, caused by the prosecution's insistence that the applicant plead guilty to a charge of manufacturing cocaine which was not legally sustainable, including:
a)The anxiety occasioned by the suspense and uncertainty during the delay;
b)The inability to pursue educational and employment opportunities otherwise open to him;
c)The inability to pursue any prospect of reconciliation with his former wife and more frequent contact with his fifteen year old son;
d)The applicant's 'emotional vulnerability' by reason of his history of persecution, and;
e)The development of 'moderately intense symptoms of depression and anxiety' sufficiently severe to warrant a diagnosis of 'Dysthymic Disorder'.
GROUND 2
The Sentencing Judge erred in imposing the same sentence as that which was imposed on Samjir Beqiri, in particular His Honour failed to have regard:
a)To the fact that the co‐accused Beqiri paid for the air tickets of the persons alleged to have imported the cocaine in approximately November 2010;
b)To the fact that the co‐accused Beqiri came into possession of the cocaine either at the time of its importation, or very shortly after its importation in January 2011, whereas the applicant was alleged to have commenced his involvement from 13 March 2011;
c)To the fact that Beqiri provided the address at which the drugs were found, sourced and obtained the chemicals to be used and provided the name and address to be used by the co‐accused Hiseni when he entered to [sic] the country, whereas the applicant had provided support to Beqiri by driving him around and facilitating communication with the other co‐accused who spoke a different dialect;
d)To the fact that Beqiri had lied extensively to investigators in two lengthy interviews whereas the applicant remained silent; and,
e)To the fact that the moderating effect of Beqiri's psychological condition was marginal.
In our opinion, the Court cannot be ‘satisfied that there are such merits in the proposed appeal that it would probably succeed’.
The first ground: effect on applicant of delay
The applicant says that the sentencing judge failed to have proper regard to the effect on him of delay.
The sentencing judge said:
Furthermore, by reason of the prosecution’s insistence in proceeding with the charge that could not be made out on the evidence in this case, you have both experienced unnecessary delay in the resolution of these proceedings, and I accept that delay has caused considerable anxiety for both of you. It is regrettable that the approach taken by the prosecution has caused this delay, and I have taken that fact, that is, the delay, into account in your favour.[26]
[26]Reasons [5].
In his application, Hiseni similarly contended that the sentencing judge had given insufficient consideration to the ‘considerable delay’ before both Hiseni and the applicant were sentenced in comparison with Beqiri. In dismissing Hiseni’s application, Coghlan JA said:
The distinction between both the applicant and Mehmeti and Beqiri is that as observed by the learned sentencing judge there has been significant delay. In the case of the applicant who has been remanded in custody since his arrest, the most important feature of delay was that he had these matters hanging over him. Although Mehmeti was on bail for a considerable period, he was left in a similar position.
The counterbalance between the reduction in sentence received by Beqiri for his psychological difficulties and the reduction in sentence for the applicant and Mehmeti for delay seems reasonable.[27]
[27]Hiseni v DPP (Cth) [2013] VSCA 301, [21]-[22].
The first ground is without merit. In R v Merrett,[28] Maxwell P said
While this might be an explanation, it certainly could not justify such inordinate delay. On a proper analysis, however, the significance of delay as a sentencing factor cannot depend on whether or not there is a satisfactory explanation for the delay. There is, of course, a strong public interest in criminal conduct being investigated and prosecuted as quickly as is reasonably practicable. But the absence of an explanation for the delay could not, by itself, justify any greater reduction in the sentence than would be made in a case where the delay was satisfactorily explained.
The relevance of delay lies rather in the effect which the lapse of time – however caused – has on the accused. Delay constitutes “a powerful mitigatory factor”.[29]
[28](2007) 14 VR 392.
[29]Ibid 400[34]-[35] (citations omitted; emphasis added).
The sentencing judge was well aware of the considerable delay in the resolution of the applicant’s and Hiseni’s matters occasioned by the course of events in relation to Beqiri. The effects of that delay were set out in the report of Patrick Newton dated 16 April 2013. It is true that what the trial judge had to say in his sentencing remarks on the subject was relatively terse. However, when consideration is given to the totality of his dialogue with counsel for the applicant on the hearing of the plea, there cannot be any doubt that the judge fully understood what was being said to him about the prejudicial effects on the applicant of the delay in bringing his matter to a resolution. The sentence ultimately imposed, by its moderate nature, reflects that fact, and the fact that proper regard was given to delay as a mitigating factor.
The second ground: (inappropriate) parity
The second ground is premised on the fact that the applicant and Beqiri received the same sentence and, then, upon a comparison of the position of the applicant relative to that of Beqiri. It is to the effect that the judge failed to take into account that Beqiri’s culpability was greater than that of the applicant and that the circumstances personal to Beqiri that led to a moderation of his sentence were only ‘marginal’. In the present case, the applicant is saying that the sentencing judge erred in treating his culpability as equal to that of Beqiri when it was not equal, and he should have received a lesser sentence.
The remarks of the sentencing judge are contained in the reasons of Coghlan JA in refusing Hiseni’s application for leave. They are extracted in [22] above.
As the proposed ground of appeal asserts, the applicant says that Beqiri had imported the cocaine in January 2011, some three months before the applicant became involved in its extraction from the clothing. In the disposal of Hiseni’s election hearing, Coghlan JA had said that there was evidence from which it might be inferred that Beqiri was ‘higher in the hierarchy’ than the other offenders.[30] The applicant also said that, during the investigation, Beqiri had lied to the police while he had said nothing.
[30]Hiseni v DPP (Cth) [2013] VSCA 301, [23].
In R v Wolfe,[31] Maxwell P said:
[T]he question which according to the authorities must be addressed when dealing with a parity ground is whether the appellant could be said to have a ‘justifiable sense of grievance’ about the relativity between the appellant’s sentence and the sentence of the co-offender. I do not understand the test thus formulated to require any departure from the conventional approach to appellate review of sentences. That is, the question whether the appellant’s sense of grievance is justifiable is to be determined by asking whether there were reasonable grounds for the differentiation – or lack of differentiation, as the case may be – between the appellant and the co-offender. If it was reasonably open to the sentencing judge, on the material before the court, to differentiate – or fail to differentiate – between the co-offenders in the way he/she did, then there is no warrant for appellate intervention, and the appellant’s grievance about the sentencing relativity cannot be said to be justifiable.[32]
[31][2008] VSCA 284; see R v Lewis [2008] VSCA 202, [15]; Teng v The Queen (2009) 22 VR 706, 710 [17].
[32]Ibid [9].
What was said by judges of the Court in dealing with the applications of Beqiri and Hiseni cannot be decisive in the present application, but it remains of relevance. In refusing Hiseni’s original application for leave to appeal, Buchanan JA said that the their culpability was ‘broadly equivalent’.[33] And the full remarks of Coghlan JA (with whom Weinberg JA agreed) were as follows:
Although there is some evidence from which it might be inferred that Beqiri was higher in the hierarchy than the other two offenders, there is little or no evidence to demonstrate that Mehmeti, although he was the original contact for the applicant, was anything other than a person acting on the basis of being paid a fee for his service. I do not accept that there is any real distinction to be drawn between the applicant and Mehmeti for the purpose of sentencing.[34]
[33]Hiseni v DPP (Cth) (Unreported, Supreme Court of Victoria, Court of Appeal, Buchanan JA, 24 July 2013) [10].
[34]Hiseni v DPP (Cth) [2013] VSCA 301, [23].
Beqiri’s culpability was greater, but his sentence, when he was resentenced by the Court of Appeal, was reduced by reason of circumstances that were peculiar to him. There is no basis in the material that would have required the applicant to have received a substantially lesser sentence than Beqiri. Sentencing is a matter for the sentencing judge. It involves ‘broad evaluative judgments, in respect of which minds could reasonably differ at a number of points and from a number of perspectives’.[35] Given that the same sentences were reasonably open, there is no basis for appellate intervention.
[35]DPP (Cth) v De La Rosa (2010) 243 FLR 28, 47[65] (Allsop P).
The application for an extension of time for leave to appeal against sentence is dismissed.
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