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Gul v The Queen

Gul v The Queen

Case [2016] VSCA 82 28 April 2016

Appeal

Sentencing

Rehabilitation

Mitigating Circumstances

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0178

HUSEYIN GUL	Appellant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, COGHLAN and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 April 2016
DATE OF JUDGMENT:	28 April 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 82
JUDGMENT APPEALED FROM:	DPP v Gul (Unreported, County Court of Victoria, Judge Parsons, 20 August 2015)

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CRIMINAL LAW – Appeal against sentence – Appellant pleaded guilty to a number of drug offences, including trafficking in steroids weighing 37.5 grams short of the commercial quantity threshold of 5 kilograms (charge 1) – Sentence of 3 years for charge 1, with a total effective sentence of 4 years and a non-parole period of 2 years and 9 months – Judge ordered that appellant be assessed for suitability for a community correction order (CCO) – Appellant assessed as suitable for CCO – Judge did not refer to a CCO as a sentencing option in his sentencing remarks – This omission did not constitute sentencing error – Sentencing Act 1991 s 5(4C), Boulton v The Queen [2014] VSCA 342, Arthars v The Queen (2013) 39 VR 613 considered.

CRIMINAL LAW – Appeal against sentence – Whether individual sentence on charge 1 and total effective sentence manifestly excessive – Strong mitigating circumstances, including exceptional efforts at rehabilitation – Appeal allowed – Appellant resentenced to 2 years’ imprisonment with a 1 year non-parole period – Yacoub v The Queen [2006] VSCA 203 considered.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Alexander	Garde Wilson Lawyers
For the Crown	Mr B L Sonnet	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA
COGHLAN JA
KYROU JA:

Introduction and summary

On 13 August 2015, the appellant (now aged 33) pleaded guilty to a number of drug offences in the County Court. Following a plea on that date, he was sentenced on 20 August 2015 as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Trafficking in a drug of dependence [Drugs, Poisons and Controlled
Substances Act 1981(‘DPCSA’) s 71AC] 15 years 3 years Base

2

Trafficking in a drug of dependence

15 years

12 months

4 months

3 Possessing material and equipment for purposes of trafficking [DPCSA s 71A] 10 years 12 months 4 months

4 Possessing a drug of dependence [DPCSA s 73(1)(c)] 400 penalty units or 5 years or both 12 months 4 months

5 Possessing a drug of dependence [DPCSA s 73(1)(b)] 30 penalty units or 1 year or both 1 month

Summary Charge

Offence

Maximum

Sentence

Cumulation

28 Possess a sch 4 poison without authorisation or licence (Sildenafil) [DPCSA s 36B(2)]
10 penalty units
Convicted & fined $250

29 Possess a sch 4 poison without authorisation or licence (Clenbuterol)
10 penalty units
Convicted & fined $250

33 Possess a sch 4 poison without authorisation or licence (Clomiphene)
10 penalty units
Convicted & fined $250

34 Possess a sch 4 poison without authorisation or licence (Liothyronine)
10 penalty units
Convicted & fined $250

35

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Trafficking in a drug of dependence [Drugs, Poisons and Controlled Substances Act 1981(‘DPCSA’) s 71AC]	15 years	3 years	Base
2	Trafficking in a drug of dependence	15 years	12 months	4 months
3	Possessing material and equipment for purposes of trafficking [DPCSA s 71A]	10 years	12 months	4 months
4	Possessing a drug of dependence [DPCSA s 73(1)(c)]	400 penalty units or 5 years or both	12 months	4 months
5	Possessing a drug of dependence [DPCSA s 73(1)(b)]	30 penalty units or 1 year or both	1 month
Summary Charge	Offence	Maximum	Sentence	Cumulation
28	Possess a sch 4 poison without authorisation or licence (Sildenafil) [DPCSA s 36B(2)]	10 penalty units	Convicted & fined $250
29	Possess a sch 4 poison without authorisation or licence (Clenbuterol)	10 penalty units	Convicted & fined $250
33	Possess a sch 4 poison without authorisation or licence (Clomiphene)	10 penalty units	Convicted & fined $250
34	Possess a sch 4 poison without authorisation or licence (Liothyronine)	10 penalty units	Convicted & fined $250
35

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 Gul v The Queen

Details

AGLC: Gul v The Queen [2016] VSCA 82
Case: [2016] VSCA 82
Decision Date: 28 April 2016

CaseChat Overview and Summary

Gul v The Queen involves an appeal against the sentence imposed on the appellant, Gul, who pleaded guilty to several drug offences, including trafficking in steroids. The dispute centres on the appropriateness of the sentence given by the court, specifically the sentence for trafficking in steroids weighing 37.5 grams short of the commercial quantity threshold of 5 kilograms, as well as the total effective sentence. The appeal was heard in the Victorian Court of Appeal.

The court had to determine whether the judge's failure to mention a community correction order (CCO) as a sentencing option constituted a sentencing error, and whether the individual and total effective sentences were manifestly excessive. The court considered the Sentencing Act 1991, Boulton v The Queen, and Arthars v The Queen in addressing these issues. The court found that the omission of the CCO did not amount to a sentencing error and proceeded to examine the excessiveness of the sentences.

The court reasoned that despite the appellant's exceptional efforts at rehabilitation, the sentences imposed were not manifestly excessive. However, the court allowed the appeal and resentenced the appellant to 2 years' imprisonment with a 1-year non-parole period, citing Yacoub v The Queen as a relevant precedent. The court took into account the mitigating circumstances and the appellant's rehabilitation efforts in arriving at the new sentence.

The final orders of the court were that the appeal was allowed, and the appellant was resentenced to 2 years' imprisonment with a 1-year non-parole period. The court's decision highlights the importance of considering rehabilitation efforts and mitigating circumstances in determining an appropriate sentence.

Orders