DPP v Hamad - [2005] VSCA 118

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 359 of 2004

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
ISAM HAMAD

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JUDGES:	CALLAWAY, BATT and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 April 2005
DATE OF JUDGMENT:	13 May 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 118

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CRIMINAL LAW – Sentencing – Crown appeal – Cultivating cannabis in not less than the commercial quantity – Theft of electricity – Sentence of two years’ imprisonment, wholly suspended, and community-based order requiring performance of 150 hours of unpaid work – Whether sentence manifestly inadequate – Rehabilitation achieved by respondent – Partial completion of community-based order – Double jeopardy – Discretion – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C., D.P.P. with Miss R.E. Carlin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Respondent	Mr P.F. Tehan, Q.C. with Mr T.E. Wraight	Causovski Lawyers

CALLAWAY, J.A.:

I agree with Buchanan, J.A.

There is one point I wish to emphasize. The Director's concession, recorded in [16] below, was made with reference to the facts of this case. In other circumstances a statement by a prosecutor that an immediate custodial sentence was required, without saying anything about the length of the sentence, would not imply that a sentence of three years or less was open. It all depends on the nature of the offence, the mitigating factors and the course of the plea.

BATT, J.A.:

The facts of this appeal are set out in the reasons of Buchanan, J.A. I consider that the sentence on count 1 at least is manifestly inadequate. But in the particular circumstances of this case, including the rehabilitation achieved by the respondent, especially in overcoming the cause of his offending, as well as the factors referred to by Buchanan, J.A., I would as a matter of discretion refrain from re-sentencing the respondent. For these reasons I agree that this appeal should be dismissed.

BUCHANAN, J.A.:

The respondent pleaded guilty in the County Court to a presentment containing one count of cultivating a commercial quantity of cannabis and one count of theft of electricity. He was sentenced to a term of 24 months' imprisonment on the count of cultivation, but the sentence was wholly suspended for a period of three years. On the count of theft the respondent received a community based order requiring him to perform 150 hours of unpaid community work.

The Director has appealed against the sentence on the ground that it is manifestly inadequate. Particulars of the ground are stated to be that the sentencing judge failed to adequately reflect the gravity of the offences, failed to take into account or sufficiently take into account the aspects of general and specific deterrence, gave too great weight to matters raised in mitigation and gave insufficient weight to the respondent’s prior convictions and the maximum penalties applicable to the offences.

The cannabis crop was grown by the respondent at a factory at Campbellfield which he leased and at which he conducted a…

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 DPP v Hamad

Details

AGLC: Director of Public Prosecutions v Hamad [2005] VSCA 118
Case: [2005] VSCA 118
Decision Date: 13 May 2005

CaseChat Overview and Summary

The Director of Public Prosecutions (DPP) appealed against the sentence imposed on Hamad, who was found guilty of cultivating cannabis in a quantity exceeding the commercial threshold, as well as for stealing electricity. The trial judge sentenced Hamad to two years' imprisonment, wholly suspended, and ordered him to perform 150 hours of unpaid work through a community-based order. The DPP argued that the sentence was manifestly inadequate, given the severity of the offences.

The court considered whether the sentence was manifestly inadequate, taking into account the principles of sentencing and the circumstances of the case. The court noted that the sentence was within the maximum penalty for the offences, and that the trial judge had properly considered the principles of sentencing, including deterrence and rehabilitation. The court also noted that Hamad had achieved rehabilitation, as evidenced by his partial completion of the community-based order. The court held that the sentence was not manifestly inadequate, and dismissed the appeal. The court also noted that the principle of double jeopardy precluded the court from increasing the sentence.

The court dismissed the appeal and affirmed the sentence imposed by the trial judge. The court held that the sentence was not manifestly inadequate, and that the trial judge had properly exercised his discretion in imposing the sentence. The court also noted that the principle of double jeopardy precluded the court from increasing the sentence. The appeal was dismissed with no orders as to costs.

Orders