Hoxha v The Queen - [2012] VSCA 156

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. S APCR 2012 0010

ARIAN HOXHA
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG and MANDIE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 July 2012
DATE OF JUDGMENT:	25 July 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 156
JUDGMENT APPEALED FROM:	DPP v Arian Hoxha (Unreported, County Court of Victoria, Judge Maidment, 15 December 2011)

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CRIMINAL LAW – Application for leave to appeal against sentence – Possession of substances and equipment relating to the manufacture of a drug of dependence with intention of trafficking – Sentence of 33 months with 22 months non-parole – Whether sentencing judge erred in finding beyond reasonable doubt that substantial time, thought, energy and resources had been applied to the process of acquiring the items the subject of the charge and that the offence was the product of not insubstantial planning and preparation – Whether sentencing judge erred in not imposing a wholly suspended sentence – Leave to appeal refused – No point of principle.

CRIMINAL LAW – Appeal against sentence - Possession of substances and equipment relating to the manufacture of a drug of dependence with intention of trafficking – Sentence of 33 months with non-parole period of 22 months – Whether sentencing judge erred in rejecting application of principles five and six of R v Verdins (2007) 16 VR 269 – Whether sentence and non-parole period manifestly excessive – Appeal dismissed – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Respondent	Mr G A Georgiou	Robert Stary Lawyers
For the Crown	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

I agree with Mandie JA.

MANDIE JA:

On 23 November 2011, the appellant pleaded guilty in the County Court to one count of possession of substances and equipment relating to the manufacture of a drug of dependence with the intention of using the same for the purpose of trafficking in a drug of dependence pursuant to s 71A of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).[1]
[1]Section 71A(1) provides that ‘a person who, without being authorised by or licensed … to do so, possesses a substance, material, document containing instructions relating to the preparation, cultivation or manufacture of a drug of dependence or equipment with the intention of using the substance, material, document or equipment for the purpose of trafficking in a drug of dependence is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum)’.

On 15 December 2011, the appellant was sentenced to 33 months’ imprisonment with a non parole period of 22 months.[2] On 18 April 2012, Neave JA granted the appellant leave to appeal against sentence on two grounds, namely that the sentencing judge erred in rejecting the application of principles five and six set out in R v Verdins[3] (ground 2) and that the sentence and non-parole period was manifestly excessive (ground 4). Her Honour refused leave to appeal on the basis of proposed grounds 1 and…

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 Hoxha v The Queen

Details

AGLC: Hoxha v The Queen [2012] VSCA 156
Case: [2012] VSCA 156
Decision Date: 25 July 2012

CaseChat Overview and Summary

In the matter of Hoxha v The Queen, the appellant was convicted of possession of substances and equipment related to the manufacture of a drug of dependence with the intention of trafficking. The conviction arose from the discovery of significant quantities of precursor chemicals and manufacturing equipment in his possession. The Court of Appeal was tasked with considering an application for leave to appeal against the sentence and an appeal against the sentence itself. The appellant argued that the sentencing judge had erred in various respects, including the determination of the level of planning and preparation involved in the offence and the imposition of the sentence.

The primary legal issues before the court involved the assessment of the sentence's appropriateness and the sentencing judge's application of relevant legal principles. Specifically, the appellant challenged the sentencing judge's findings that substantial planning and preparation had gone into the commission of the offence and that the sentence was not manifestly excessive. The appellant also argued that the sentencing judge should have imposed a wholly suspended sentence under the principles set out in R v Verdins (2007) 16 VR 269.

The court meticulously reviewed the sentencing judge's assessment of the evidence and the application of legal principles. The court found that the sentencing judge had correctly determined that the offence involved significant planning and preparation, supported by the evidence of the quantities and sophistication of the substances and equipment found. The court also held that the sentence, including the non-parole period, was not manifestly excessive, considering the nature and seriousness of the offence. Furthermore, the court determined that the principles in Verdins did not require the imposition of a wholly suspended sentence in this case. Consequently, the court refused leave to appeal and dismissed the appeal, finding no point of principle of general public importance.

The final orders of the court were to refuse leave to appeal and to dismiss the appeal against sentence. The sentence of 33 months imprisonment with a non-parole period of 22 months was upheld as appropriate and legally sound.

Orders