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
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- AGLC
- Gul v The Queen [2016] VSCA 82
- Case
- [2016] VSCA 82
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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