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Kada v The Queen

Kada v The Queen

Case [2017] VSCA 339 22 November 2017

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0039

HAVAL KADA	Applicant
v
THE QUEEN	Respondent

S APCR 2017 0040

HADIL KADA	Applicant
v
THE QUEEN	Respondent

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JUDGES:	TATE and KYROU JJA and BEALE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 October 2017
DATE OF JUDGMENT:	22 November 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 339	First revision: 29 November 2017
JUDGMENT APPEALED FROM:	DPP v Kada (Unreported, County Court of Victoria, Judge Chettle, 17 February 2017)

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CRIMINAL LAW – Appeal against sentence – Trafficking in a drug of dependence – Large quantities of methylamphetamine supplied in four transactions to dealer who onsold to undercover police operative – Sentence of 42 months’ imprisonment on trafficking charge – Whether judge failed to give appropriate weight to element of entrapment involved in transactions – Relevant principles – No error disclosed.

CRIMINAL LAW – Appeal against sentence – Whether judge erred in characterising applicants’ offending as falling within upper-mid level range – No error disclosed.

CRIMINAL LAW – Appeal against sentence – Whether sentences manifestly excessive – No error disclosed.

CRIMINAL LAW – Appeal against sentence – Judge imposed same sentence on applicants even though first applicant had a lesser role in offending – Parity principle infringed – Appeal allowed – First applicant resentenced to 3 years’ imprisonment on trafficking charge.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Haval	Mr C Carr	Grigor Lawyers
For the Applicant Hadil	Mr P Smallwood	Grigor Lawyers
For the Crown	Mr P J Doyle	J Cain, Solicitor for Public Prosecutions

TATE JA
KYROU JA:

Introduction and summary

On 9 February 2017, the applicants Hadil Kada and Haval Kada pleaded guilty to the charges set out in the following tables and, on 17 February 2017, they were sentenced as set out in those tables:[1]
[1]DPP v Kada (Unreported, County Court of Victoria, Judge Chettle, 17 February 2017) (‘Sentencing remarks’).

HADIL KADA

Charge Offence Maximum Sentence Cumulation

1
Trafficking in a drug of dependence

[Drugs, Poisons and Controlled Substances Act 1981 (‘DPCSA’), s 71AC]
15 years 42 months Base

3
Possessing a drug of dependence

[DPCSA s 73, trafficking purpose not excluded]
5 years 6 months 3 months

4
Possessing a drug of dependence

[DPCSA s 73, trafficking purpose not excluded]
5 years 3 months -

5
Possessing a drug of dependence

[DPCSA s 73, trafficking purpose excluded]
1 year[2] $200 fine -

Related summary charges

4
Driving while authorisation suspended

[Road Safety Act 1986 s 30]
2 years $1,000 fine -

12
Possessing a poison

[DPCSA s 36B(2)]
10 penalty units $200 fine -

Total Effective Sentence: 3 years and 9 months’ imprisonment

Non-Parole Period: 2 years

Pre-Sentence Detention Declaration: 62 days

Section 6AAA Statement: 5 years’ imprisonment with non-parole period of 3 years

Other Orders: Pecuniary penalty order for $38,328.25
[2]See below n 4.

HAVAL KADA

Charge Offence Maximum Sentence Cumulation

2
Trafficking in a drug of dependence

[DPCSA s 71AC]
15 years 42 months Base

3
Possessing a drug…

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 Kada v The Queen

Details

AGLC: Kada v The Queen [2017] VSCA 339
Case: [2017] VSCA 339
Decision Date: 22 November 2017

CaseChat Overview and Summary

In the case of Kada v The Queen, the appellants appealed against their sentences imposed for trafficking in methylamphetamine. The appellants were involved in supplying large quantities of methylamphetamine in four separate transactions to a dealer, who subsequently sold the drug to an undercover police operative. The first appellant was sentenced to 42 months’ imprisonment for trafficking, and the second appellant received the same sentence. The appellants argued that the judge did not adequately consider the entrapment element, the characterisation of their offending, and the parity principle in sentencing.

The legal issues before the court included whether the judge failed to appropriately weigh the entrapment element, whether the judge correctly characterised the appellants' offending as falling within the upper-mid level range, and whether the sentences were manifestly excessive. Additionally, the court had to determine if the judge erred in imposing the same sentence on both appellants despite the first appellant having a lesser role in the offending.

The court found no error in the judge's consideration of the entrapment element, the characterisation of the offending, or the sentencing severity. However, the court did find that the judge failed to consider the parity principle, as the first appellant had a lesser role in the offending. Consequently, the court allowed the appeal regarding the parity principle and resentenced the first appellant to 3 years’ imprisonment on the trafficking charge. The second appellant’s sentence was upheld.

The court's final orders were that the first appellant's sentence was reduced to 3 years' imprisonment, while the second appellant's sentence of 42 months' imprisonment remained unchanged. The appeal was otherwise dismissed.

Orders