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Djemal v The Queen

Djemal v The Queen

Case [2020] VSCA 25 19 February 2020

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0145

EFKAN DJEMAL	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NIALL and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 February 2020
DATE OF JUDGMENT:	19 February 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 25
JUDGMENT APPEALED FROM:	[2019] VCC 966 (Judge Coish)

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CRIMINAL APPEAL – Sentence – Possession of equipment for trafficking a drug of dependence – Possession of small amounts of drugs and precursor chemicals – Firearms offences – Possession of a traffickable quantity of unregistered firearms – Whether judge misunderstood gravity of offending conduct – Whether sentence manifestly excessive –Ground not reasonably arguable – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr C M Terry	Marcevski Lawyers
For the Respondent:	Ms G A Coghlan	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
WEINBERG JA:

Introduction

The applicant pleaded guilty to seven indictable offences and eight related summary offences that relate to three broad categories of offending. First, possession of equipment for trafficking a drug of dependence. Second, possession of relatively small amounts of various drugs or precursor chemicals, being MDA, MDMA, methylamphetamine, cannabis, pseudoephedrine and ephedrine. Third, possession of a traffickable quantity of unregistered firearms and possession of other controlled or prohibited weapons.

Following a plea of guilty, on which the applicant accepted that a period of imprisonment was open to the sentencing judge, the applicant was sentenced as follows:

Charge on Indictment J11373648

Offence

Maximum

Sentence

Cumulation

1.     Possession of substance, material, document or equipment for trafficking a drug of dependence
(s 71A of the Drugs, Poisons and Controlled Substances Act 1981) 10 years 24 months Base

2.
Possession of a drug of dependence

(s 73 of the Drugs, Poisons and Controlled Substances Act 1981)
5 years / 1 year non-trafficking purpose 2 months 1 month

3.
Possession of a drug of dependence

(s 73 of the Drugs, Poisons and Controlled Substances Act 1981)
5 years / 1 year non-trafficking purpose 14 days —

4.
Possession of a drug of dependence

(s 73 of the Drugs, Poisons and Controlled Substances Act 1981)
5 penalty units Fined $300 —

5.
Possession of a drug of dependence

(s 73 of the Drugs, Poisons and Controlled Substances Act 1981)
5 years / 1 year non-trafficking purpose 4 months 2 months

6.
Possession of a traffickable quantity of unregistered firearms

(s 7C of the Firearms Act 1996)
1200 penalty units or 10 years 10 months 5 months

7.
Non-prohibited person possess unregistered paintball marker

(s 6A(4) of the Firearms Act 1996)
120 penalty units or 2 years 3 months 1 month

Related Summary Offences

5.
Possess prohibited weapon without exemption or approval — taser

(s 5AA of the Control of Weapons Act 1990)
240 penalty units or 2 years’ imprisonment 2 months 1 month

6.
Store unauthorised explosive — smoke grenades

(s 54(5) of the Dangerous Goods Act 1986)

100 penalty units
Fined…

1.	Possession of substance, material, document or equipment for trafficking a drug of dependence (s 71A of the Drugs, Poisons and Controlled Substances Act 1981)	10 years	24 months	Base
Charge on Indictment J11373648	Offence	Maximum	Sentence	Cumulation

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 Djemal v The Queen

Details

AGLC: Djemal v The Queen [2020] VSCA 25
Case: [2020] VSCA 25
Decision Date: 19 February 2020

CaseChat Overview and Summary

The appellant, Djemal, appealed against his conviction and sentence for possession of equipment for trafficking a drug of dependence, possession of small amounts of drugs and precursor chemicals, and possession of a traffickable quantity of unregistered firearms. The appeal was heard in the High Court of Australia. Djemal argued that the judge had misunderstood the gravity of his offending conduct and that the sentence was manifestly excessive.

The legal issues before the court were whether the judge had misunderstood the gravity of Djemal's offending conduct, and whether the sentence was manifestly excessive. The court was also required to determine if the grounds of appeal were reasonably arguable and whether leave to appeal should be granted.

The court found that the judge had not misunderstood the gravity of Djemal's offending conduct, and that the sentence was not manifestly excessive. The court held that the grounds of appeal were not reasonably arguable, and therefore, the application for leave to appeal was refused. The court found that the sentence was within the range of sentences that could be imposed for the offences committed, and that the judge had properly considered all relevant factors in imposing the sentence. The court held that the appeal was groundless and that leave to appeal should not be granted.

Orders