Haidari v The Queen - [2014] VSCA 91

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:

[1]DPP v Haidari [2012] VCC 1387.

Charge Offence
Maximum

Penalty

Minimum

Penalty
Sentence Cumulation

1
People smuggling – s 233(1)(a)

Migration Act

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

Migration Act

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

Migration Act

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,…

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 Haidari v The Queen

Details

AGLC: Haidari v The Queen [2014] VSCA 91
Case: [2014] VSCA 91
Decision Date: 9 May 2014

CaseChat Overview and Summary

The applicant, Haidari, appealed against the refusal by the Deputy Registrar (Legal) to grant an extension of time for leave to appeal against a sentence imposed by the County Court. Haidari pleaded guilty to three counts of people smuggling and one count of importation of methamphetamine, resulting in an effective sentence of 11 years and six months' imprisonment, with a non-parole period of eight years. The appeal against sentence was delayed by almost 12 months, with no adequate explanation provided for the delay. The court had to decide whether the proposed grounds of appeal were devoid of merit, whether the sentencing judge erred in failing to give sufficient weight to the fact that the charge involved a 'sting' operation, and whether there was an error in the application of the principle of totality.

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.

Orders