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…
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- AGLC
- Kada v The Queen [2017] VSCA 339
- Case
- [2017] VSCA 339
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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