Ceylan v The Queen - [2011] VSCA 318

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0088
NEJAT CEYLAN	Appellant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	20 October 2011
DATE OF JUDGMENT:	20 October 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 318
JUDGMENT APPEALED FROM:	DPP v Ceylan (Unreported, County Court of Victoria, Judge Chettle, 4 April 2011)

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CRIMINAL LAW – Sentence – Trafficking in a drug of dependence (one count) and possessing a prescribed precursor chemical (one count) – Whether judge relied on appellant’s subsequent charge for possession of a precursor chemical as relevant in assessing appellant’s prospect of rehabilitation – Whether sentence imposed on appellant offended parity principle – No error demonstrated – Appeal dismissed – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S P Matters	Griffin Law Firm
For the Crown	Mr S M Cooper	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

On 1 December 2010[1] the appellant, Nejat Ceylan, a man now aged 43, pleaded guilty in the County Court at Melbourne to one count of trafficking in a drug of dependence, namely methylamphetamine, and one count of possessing a prescribed precursor chemical. The plea was entered after there had been a contested committal, following which his counsel had stated that his client was willing to plea guilty to an appropriately drawn presentment.
[1]The appellant was arraigned on 1 December 2010. On 21 February 2011, a further presentment was filed and admitted by the appellant. The allocutus was also put to the appellant.

The appellant’s plea in mitigation proceeded on 28 March 2011. He was sentenced on 4 April 2011 as follows:

Count on Presentment	Offence	Maximum	Sentence
1.	Trafficking in a drug of dependence, namely methylamphetamine	15 years [s 71AC Drugs, Poisons and Controlled Substances Act 1981 (Vic)]	3 years
2.	Possession of a prescribed precursor chemical	5 years [s 71D Drugs, Poisons and Controlled Substances Act 1981 (Vic)]	3 months
Total Effective Sentence:		3 years
Non-Parole Period:		20 months
Pre-sentence Detention Declared:		283 days
6AAA Statement:		4 years’ imprisonment with a non-parole period of 3 years
Other orders: Forensic Sample Order [s 464ZF(2) Crimes Act 1958 (Vic)] Disposal Order [s 77(1) Confiscations Act 1997 (Vic)]

Leave to appeal

On 8 July 2011, Buchanan JA granted the appellant leave to appeal against sentence on the following grounds:

Ground 1: The total effective sentence imposed by the sentencing judge was manifestly excessive in that:
(a)it was so disparate with the sentence imposed upon the co-accused Colin Patrick White, as to engender a justifiable sense of grievance or give the appearance in the mind of an objective observer that justice has not been done; and
(b)his Honour relied upon the subsequent arrest and charging of the appellant for possession of a controlled precursor as a relevant factor in assessing the future prospect of rehabilitation of the appellant.

Ground 2: The sentencing judge erred in law by taking into account in sentencing matters that were not…

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 Ceylan v The Queen

Details

AGLC: Ceylan v The Queen [2011] VSCA 318
Case: [2011] VSCA 318
Decision Date: 20 October 2011

CaseChat Overview and Summary

The case of Ceylan v The Queen involved the appellant who was convicted of trafficking in a drug of dependence and possessing a prescribed precursor chemical. The appeal centred around the sentencing process and whether the judge erred in considering the appellant's subsequent charge for possession of a precursor chemical when assessing the appellant's prospects of rehabilitation. Additionally, the appeal contested whether the sentence imposed contravened the parity principle. The High Court of Australia was tasked with reviewing these issues.

The primary legal issues were whether the trial judge's consideration of the subsequent charge was an improper factor in sentencing and if the sentence imposed was in breach of the parity principle. The appeal argued that the judge's reliance on the subsequent charge was an error and that the sentence imposed was not in line with the principle of parity. The Court needed to determine if the trial judge's approach was legally sound and whether the sentence was justified under the circumstances.

The High Court held that no error was demonstrated in the trial judge's approach. The Court found that the judge appropriately considered the appellant's subsequent charge as it reflected on the appellant's prospects of rehabilitation, and this was a legitimate factor in sentencing. Furthermore, the Court determined that the sentence did not breach the parity principle, as it was proportionate to the gravity of the offences and the appellant's culpability. The appeal was dismissed as no point of principle was demonstrated.

The Court did not order any variation to the sentence or retrial, affirming the original judgment and sentence imposed by the trial court. The decision underscored the importance of considering an offender's rehabilitation prospects and ensuring that sentences align with legal principles of proportionality and parity.

Orders