DPP v Ibrahimoff - [2001] VSCA 46

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 81 of 2000

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
ISMAIL HASAN IBRAHIMOFF

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JUDGES:	PHILLIPS, C.J., BROOKING and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 April 2001
DATE OF JUDGMENT:	27 April 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 46

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CRIMINAL LAW – Sentence – Pre-sentence detention – Application for correction of declaration – No order necessary – Declaration had rightly included whole period of detention up to determination of appeal – R. v. Jennings [1999] 1 V.R. 352 considered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B.L. Sonnet	P.C. Wood, Solicitor for Public Prosecutions
For the Respondent	Mr M. Croucher	Leanne Warren & Associates

PHILLIPS, C.J.:

I have had the benefit of reading the judgment of Brooking, J.A. in draft form. I concur in the conclusions his Honour has reached and I would subscribe to his reasons therefor.

BROOKING, J.A.:

In order to bring everything together in a single judgment I shall begin by setting out again much of what appeared in the judgment I gave on 8 December 2000, when the Court determined what form of order it should make in allowing an appeal against sentence by Ismail Hasan Ibrahimoff.

Ibrahimoff had been sentenced in the County Court on 3 April 2000 to ten years’ imprisonment with a non-parole period of eight years after pleading guilty to trafficking in heroin between 19 February 1999 and 24 March 1999. He was at the time of the passing of that sentence undergoing a sentence of two years’ imprisonment with a non-parole period of eight months which resulted from the dismissal by the County Court on 20 March 2000 of an appeal taken by him against the sentence imposed by the Magistrates’ Court on 29 July 1998. At the time of the passing of sentence by the Magistrates’ Court there was no pre-sentence detention to be taken into account and, since bail pending appeal was granted, there was no pre-sentence detention to be taken into account at the time the County Court disposed of his appeal to it.

The County Court judge in respect of whose sentence the application to this Court was made was aware of the sentence of two years’ imprisonment which Ibrahimoff was undergoing. In passing sentence on 3 April 2000 he sentenced Ibrahimoff to ten years’ imprisonment with a non-parole period of eight years, declared that the sentence passed by him was cumulative upon the sentence which the prisoner was undergoing and made a declaration of 369 days’ pre-sentence

detention; other orders not presently relevant were made. Ibrahimoff had been in custody ever since his arrest on 24 March 1999 in relation to the trafficking offence. By the time of the dismissal of the appeal to the County Court (20 March 2000) he had been in custody for 362 days. The judge from whose sentence Ibrahimoff wished to appeal to this Court determined that he should not declare as part of the pre-sentence detention the period of…

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 Ibrahimoff

Details

AGLC: DPP v Ibrahimoff [2001] VSCA 46
Case: [2001] VSCA 46
Decision Date: 27 April 2001

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions v. Ibrahimoff, the Supreme Court of Victoria was tasked with reviewing an application for the correction of a declaration concerning the period of pre-sentence detention. The appellant, Mr. Ibrahimoff, sought to have the declaration amended to exclude certain periods of detention from the calculation of his sentence. The court was asked to determine whether the original declaration was correct and whether any amendment was necessary.

The central legal issue before the court was whether the original declaration, which included the entire period of pre-sentence detention up to the determination of the appeal, was erroneous. The appellant argued that certain periods of detention should not have been included in the calculation of his sentence, as they were not relevant to the appeal. The court considered the relevant legal principles, particularly the decision in R. v. Jennings, which established that a declaration should include the whole period of detention up to the determination of the appeal.

The court found that the original declaration was correct and that no amendment was necessary. It held that the declaration had rightly included the whole period of detention up to the determination of the appeal, as per the principles established in R. v. Jennings. The court found that the appellant's argument did not establish any error in the original declaration, and therefore, no amendment was required. The court dismissed the application for correction of the declaration.

No further orders were made by the court. The decision stands as a clear affirmation of the principle that the whole period of pre-sentence detention up to the determination of the appeal should be included in the calculation of a sentence, as established in R. v. Jennings.

Orders