CRIMINAL LAW – Appeal – Sentence – Crown appeal – One charge of trafficking drug of dependence in large commercial quantity – One charge of trafficking – One charge of possession – Trafficking in large commercial quantity sentence 12 years – Total effective sentence 12 years and 6 months – Non-parole period 7 years – Standard sentence 16 years – Whether sentences and non-parole period manifestly inadequate – Two prior convictions for trafficking drug of dependence – Offending at or just below middle range of seriousness – Significant mitigating factors including positive prospects of rehabilitation – Sentences and non-parole period within range – Appeal dismissed.
(b)trafficking in a drug of dependence (MDA, cocaine and methylamphetamine) contrary to s 71AC of the Act, and
(c)possession of a drug of dependence (ketamine and heroin) contrary to s 73 of the Act.
The respondent also pleaded guilty to two related summary offences of possessing a Schedule 4 Poison contrary to s 36B of the Act.
He was sentenced on 17 February 2023, 32 months after his initial arrest, to a total effective sentence of 12 years and 6 months’ imprisonment with a non-parole period of 7 years, as set out below.
Charge
Offence
Max Penalty
Sentence
Cumulation
1
Trafficking in a drug of dependence — large commercial quantity (MDMA)
Life imprisonment and/or 5000 penalty units
12 years’ imprisonment
Base
2
Trafficking in a drug of dependence (MDA, cocaine and methylamphetamine)
15 years’ imprisonment
18 months’ imprisonment
6 months
3
Possession of a drug of dependence (ketamine and heroin)
5 years’ imprisonment (or 1 year if not for purposes of trafficking)
2 months’ imprisonment
Concurrent
Related Summary Offences
-
Possession of a Schedule 4 poison (Viagra)
10 penalty units
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.
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Details
AGLC
Director of Public Prosecutions v Jabbour [2023] VSCA 204
Case
[2023] VSCA 204
Decision Date
CaseChat Overview and Summary
The defendant, Jabbour, appealed against his conviction and sentence for trafficking a drug of dependence in a large commercial quantity, trafficking, and possession. The appeal was heard in the Victorian Court of Appeal. Jabbour was sentenced to 12 years for trafficking in a large commercial quantity, 6 months for trafficking, and no additional custodial sentence for possession. The non-parole period was set at 7 years. The Director of Public Prosecutions (DPP) appealed the sentence, arguing it was manifestly inadequate.
The court was required to determine if the sentence and non-parole period were manifestly inadequate given the seriousness of the offence, the defendant’s prior convictions, and the mitigating factors presented. The court assessed the total effective sentence of 12 years and 6 months and the non-parole period of 7 years against the standard sentence of 16 years. The court considered Jabbour's two prior convictions for trafficking, the significant mitigating factors, and the prospects of rehabilitation.
The court found that the total effective sentence and non-parole period were within the range for the offence, despite the DPP's argument for a harsher sentence. The court held that the sentencing judge appropriately balanced the seriousness of the offence and the mitigating factors, leading to a sentence that was not manifestly inadequate. The appeal was dismissed, and the original sentence and non-parole period were upheld.