Ibrahim v The Queen - [2013] VSCA 227

IN THE SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0257

HAITHIM IBRAHIM	Appellant
V
THE QUEEN	Respondent

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JUDGES	BUCHANAN AP, HANSEN and PRIEST JJA
WHERE HELD	Melbourne
DATE OF HEARING	28 August 2013
DATE OF JUDGMENT	6 September 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 227
JUDGMENT APPEALED FROM	[2010] VSC 333 (Coghlan J)

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CRIMINAL LAW – Sentence – Traffick large commercial quantity of methylamphetamine – Offence occurred while on bail for prior charges of trafficking in cannabis, methylamphetamine and MDMA – Plea of guilty – When sentenced appellant serving sentence of five years and four months for prior offences – Cumulation in sentencing – Sentencing Act 1991 (Vic), ss 14(1) and 16 (3C) – Sentenced to eight years’ imprisonment and with cumulation an effective sentence of 11 years – New single non-parole period of eight years – Purity not de minimis – Totality – Manifest excess.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr O P Holdenson QC	Chiodo & Madafferi
For the Respondent	Mr B L Sonnet	Office of Public Prosecutions

BUCHANAN JA:

I have read the draft reasons of Hansen JA and agree with those reasons.

HANSEN JA:

This is an appeal against sentence imposed by a judge in the Trial Division on 20 July 2010 on a single count of trafficking in a large commercial quantity of methylamphetamine. In sentencing, the judge had to take into account a sentence imposed in the County Court on 16 December 2009.

The history is this. On 16 December 2009, the appellant, following a plea of guilty, was sentenced in the County Court on three counts of trafficking simpliciter in cannabis, methylamphetamine and MDMA between 1 April 2006 and 11 June 2006, to a total effective sentence of five years and four months’ imprisonment, with a non-parole period of three years. For present purposes some explanation of these offences is necessary. Count 1 involved 308 grams of cannabis. Count 2 related to trafficking in methylamphetamine and alleged three different instances of manufacture of amphetamines with others and also of buying and selling, in a large number of transactions, 350 grams of amphetamines valued at about $90,000. A head sentence of four-and-a-half years was imposed on that count. Count 3 related to trafficking in MDMA and involved buying 62 tablets and discussions in which the appellant offered to both sell and manufacture that drug during that period. The maximum sentence on those offences was 15 years.

It so happened that on 19 August 2009, following a mention of the above proceeding in the County Court - at which the appellant, being on bail, appeared - the appellant was found by the police in possession of a large commercial quantity of methylamphetamine. He was arrested that day and charged with the single count of trafficking. He remained in custody thereafter.

Following a plea of guilty, on 20 July 2010 the appellant was sentenced to eight years’ imprisonment, five years and eight months of which to be served

cumulatively…

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 Ibrahim v The Queen

Details

AGLC: Ibrahim v The Queen [2013] VSCA 227
Case: [2013] VSCA 227
Decision Date: 6 September 2013

CaseChat Overview and Summary

The appellant was convicted of trafficking a large commercial quantity of methylamphetamine. He entered a guilty plea in the County Court of Victoria. The appeal was against the sentence imposed by the County Court, which ordered an eight-year imprisonment term, to run concurrently with the five-year and four-month sentence the appellant was already serving for prior offences. The Court of Appeal was required to decide whether the sentence was manifestly excessive.

The appeal focused on the principles of cumulation in sentencing, as outlined in sections 14(1) and 16(3C) of the Sentencing Act 1991 (Vic). The appellant argued that the total sentence of eleven years was manifestly excessive, considering the new sentence was to run concurrently with his prior sentence. The Court of Appeal examined whether the sentence was proportionate to the offence and whether the totality principle was breached. The court also considered the purity of the methylamphetamine, which was not de minimis, as well as the appellant’s criminal history. The Court of Appeal found that the sentence was not manifestly excessive, as it was proportionate to the gravity of the offence and the totality principle was not breached. The court emphasised that the purity of the methylamphetamine was a significant factor in determining the sentence.

Consequently, the Court of Appeal dismissed the appeal against sentence. The effective sentence of eleven years was upheld, with the new single non-parole period being eight years. The Court of Appeal determined that the sentence was proportionate to the gravity of the offence and did not constitute a manifest excess. The appeal was dismissed, and the original sentence was affirmed.

Orders