SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0214
| ALI HAIDARI | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | WEINBERG and SANTAMARIA JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | On the papers |
| DATE OF JUDGMENT | 9 May 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 91 |
| JUDGMENT APPEALED FROM | DPP v Haidari [2012] VCC 1387 (Chief Judge Rozenes) |
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ELECTION TO HAVE APPLICATION DETERMINED BY THE COURT OF APPEAL
PURSUANT TO S 315(2) OF THE CRIMINAL PROCEDURE ACT 2009
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DETERMINED ON THE PAPERS
JUDGMENT DELIVERED IN OPEN COURT
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CRIMINAL LAW – Sentence – Election against refusal by Deputy Registrar (Legal) of application for extension of time – Applicant pleaded guilty to three counts of people smuggling and one count of importation of methamphetamine – Total effective sentence of 11 years and six months’ imprisonment – Non-parole period of eight years – Delay of almost 12 months in seeking leave to appeal – No adequate explanation provided for delay – Consideration of proposed grounds – Whether sentencing judge erred in failing to give sufficient weight to fact that charge 4 involved ‘sting’ operation – Whether error in application of principle of totality – Proposed grounds devoid of merit – Principle of finality – Applicant had opportunity to challenge sentence as excessive when Director brought earlier manifest inadequacy appeal – Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 considered – Application dismissed.
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| Appearances: | Counsel | Solicitors |
| No appearance by leave of the Court. | ||
WEINBERG JA:
In July 2012, the applicant pleaded guilty, in the County Court at Melbourne,[1] to three people smuggling charges and one drugs charge. He was sentenced, on 20 September 2012, as set out in the following table:
Charge Offence Maximum
Penalty
Minimum
Penalty
Sentence Cumulation 1 People smuggling – s 233(1)(a)
1958 (Cth)
10 years 4 years 3 years and 6 months on base sentence
Sentence to commence 20
March 2020
2 Organising bringing
groups of non- citizens into
Australia –
s 232A
1958 (Cth)
20 years 5 years / 3 years NPP 8 years Base
Sentence to commence 20
September 2012
3 Import a marketable quantity of a
border
controlled drug
- s 307.2 (1) Criminal Code Act 1995 (Cth)
25 years 6 years 2 years with the base sentence
Sentence to commence 20
September 2016
4 Aggravated offence of
people
smuggling (at least 5 people)
– s 233C
1958 (Cth)
20 years 8 years / 5 years NPP 8 years Sentence to commence 20
September 2012
Total Effective Sentence: 11 years and 6 months imprisonment Non-Parole Period: 8 years Pre-sentence detention declared:
351 days
6AAA Statement: 15 years imprisonment with a non-parole period of 11 years.
On 16 October 2012, the Commonwealth Director of Public Prosecutions brought an appeal against the sentence imposed upon the applicant, arguing that it was manifestly inadequate.
On 26 March 2013, this Court dismissed that appeal.[2] It was not until 16 September 2013,…
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- AGLC
- Haidari v The Queen [2014] VSCA 91
- Case
- [2014] VSCA 91
- Decision Date
CaseChat Overview and Summary
The court held that the proposed grounds of appeal were devoid of merit. The sentencing judge had given appropriate consideration to the fact that the charge involved a'sting' operation, and there was no error in the application of the principle of totality. The applicant had the opportunity to challenge the sentence as excessive when the Director brought an earlier manifest inadequacy appeal, and the principle of finality applied. The court considered Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, which held that a court may refuse to grant an extension of time where there has been an unreasonable delay in seeking leave to appeal.
The court dismissed the application for an extension of time for leave to appeal. The delay in seeking leave to appeal was almost 12 months, and no adequate explanation was provided for the delay. The proposed grounds of appeal were devoid of merit, and the principle of finality applied. The court held that the application for an extension of time was refused.
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