Hiseni v DPP (Cth) - [2013] VSCA 301

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0091

ADEM HISENI
	Applicant
V
DIRECTOR OF PUBLIC PROSECUTIONS (CTH)
	Respondent

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JUDGES	WEINBERG AND COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	18 October 2013
DATE OF JUDGMENT	18 October 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 301
JUDGMENT APPEALED FROM	DPP (Cth) v Hiseni & Anor (Unreported, County Court of Victoria, Judge Dean, 2 May 2013)

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CRIMINAL LAW – Leave to appeal against sentence – Possession of a marketable quantity of a border controlled drug – 5 years 6 months’ imprisonment – 3 years 4 months’ non-parole period – Whether sentence offends the principle of parity – No real distinction in level of offending – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P F Tehan QC	Valos Black & Associates
For the Crown	Ms T Tran	Commonwealth Director of Public Prosecutions

WEINBERG JA:

The Court is in a position to give judgment in this matter. I will ask Coghlan JA to deliver the first judgment.

COGHLAN JA:

On 26 April 2013 the applicant pleaded guilty to the possession of a marketable quantity of a border controlled drug (cocaine). On 2 May 2013 he was sentenced to be imprisoned for 5 years and 6 months with a non-parole period of 3 years and 4 months.

By notice dated 27 May 2013 he makes application for leave to appeal against that sentence on the proposed ground that:

The sentence imposed offends against the sentencing principle of parity when compared with the sentences imposed upon two co-accused, being Sajmir Beqiri and Dritan Mehmeti, for the same offence.

On 24 July 2013 Buchanan JA refused leave to appeal. By notice dated 5 August 2013 the applicant elected to renew the application.

The circumstances of the offending are set out in the applicant’s revised written case as follows:

On 23^rdMarch 2011, Australian Federal Police and Victoria Police executed a search warrant at premises at 5 Whitehouse Avenue, Truganina. Present at the premises at the time of the execution of the warrant were the Applicant and Dritan Mehmeti [Mehmeti]. The premises were owned by the wife of another co-accused, Sajmir Beqiri [Beqiri].
At the premises, police located six drums, each containing clothing and towels submerged in quantities of liquid. Subsequent forensic testing revealed that it contained 1692.92 grams of pure cocaine. The marketable quantity of cocaine is two grams, and the commercial quantity is two kilograms or more.
The cocaine had been imported into Australia in January, 2011 by the Chinese girlfriend of Bakshin Gashi. Gashi had previously worked for Beqiri, and it was Beqiri who paid for the airline tickets for Gashi and his girlfriend to travel from South America to Australia.

The cocaine had been imported into Australia in a suitcase containing clothing and towels that had been impregnated with the drug. The clothing and towels which were located on 23^rdMarch, 2011 at Truganina were the items that had been imported in January,…

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 Hiseni v DPP (Cth)

Details

AGLC: Hiseni v Director of Public Prosecutions (Cth) [2013] VSCA 301
Case: [2013] VSCA 301
Decision Date: 18 October 2013

CaseChat Overview and Summary

The case of Hiseni v DPP (Cth) involved the defendant, Hiseni, appealing against the sentence imposed by the court for possession of a marketable quantity of a border controlled drug. The matter was heard in the High Court of Australia. The central issue before the court was whether the sentence imposed was so excessive as to offend the principle of parity, which ensures that sentences for similar offences are proportionate and consistent.

The court was required to determine if there was a real distinction in the level of offending between Hiseni's case and other similar cases where lesser sentences had been imposed. Hiseni argued that the sentence of five years and six months' imprisonment, with a non-parole period of three years and four months, was disproportionately severe when compared to other cases. The court assessed the gravity of the offence, the circumstances surrounding the commission of the crime, and the need for deterrence and denunciation in reaching its decision.

The High Court found that there was no real distinction in the level of offending between Hiseni's case and other similar cases. The court concluded that the sentence imposed was proportionate and did not offend the principle of parity. The appeal was dismissed, and leave to appeal was refused. The court held that the sentence was appropriate given the circumstances of the case and the objectives of sentencing.

Orders