Kheir v The Queen - [2012] VSCA 13

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0300
MAHOUD KHEIR	Appellant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN JA and HOLLINGWORTH AJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	1 February 2012
DATE OF JUDGMENT:	10 February 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 13
JUDGMENT APPEALED FROM:	(Unreported, County Court of Victoria, Judge Howie, Date of Sentence 18 November 2011)

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CRIMINAL LAW – Sentence – Trafficking in and possession of drugs of dependence – Incarceration in respect of an unrelated charge on which the offender was acquitted taken into account – Incarceration in respect of a pending charge not taken into account in the particular circumstances of this case. No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr L C Carter	Garde-Wilson Lawyers
For the Crown	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

In 2008, the police had reason to believe that members of the applicant’s family were engaged in drug trafficking. They monitored the telephones of members of the family and laid charges against the head of the family and three of his sons. The applicant is the eldest son.

The applicant was arraigned in the County Court and pleaded guilty to a count of trafficking in methylamphetamine, a count of possession of a drug of dependence being alprazolam and a count of possession of a drug of dependence being ecstasy.

A plea was conducted and the applicant was sentenced to be imprisoned for a term of 9 months on the count of trafficking in methylamphetamine and to a term of 6 months on the count of possession of ecstasy. Three months of the latter term were cumulated upon the sentence on the count of trafficking in methylamphetamine, creating a total effective sentence of 12 months’ imprisonment. A minimum term of 6 months’ imprisonment was fixed before the applicant was to be eligible for parole. On the count of possession of alprazolam, the applicant was fined $100.

The applicant seeks leave to appeal against his sentence on the following grounds:

1.The learned sentencing judge erred by failing to give adequate weight to the period of 10 months the applicant had spent on remand (2 December 2008 to 5 October 2009) before being acquitted of the offence resulting in this period of remand on 6 October 2010.
2.The learned sentencing judge erred by giving no weight or inadequate weight to the period of 10 months the applicant had spent on remand (4 December 2009 to 12 October 2010) in relation to a trial that is listed to commence in May 2012.
3.The learned sentencing judge erred by failing to have adequate regard to the implications of delay.
4.The terms of imprisonment on counts 1 and 3, the total effective sentence and the non-parole period are manifestly excessive and inappropriate.

At the plea, the prosecutor accepted that the evidence to support the count of trafficking in methylamphetamine was limited to two telephone conversations and that the quantity…

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 Kheir v The Queen

Details

AGLC: Kheir v The Queen [2012] VSCA 13
Case: [2012] VSCA 13
Decision Date: 10 February 2012

CaseChat Overview and Summary

In the case of Kheir v The Queen, the appellant was convicted of drug trafficking and possession, and the respondent, the Crown, sought a sentence for these offences. The matter was heard in the High Court of Australia, where the appellant appealed against the sentence imposed by the lower court. The central issue before the court was whether the trial judge should have taken into account the appellant's incarceration for an unrelated charge, for which he was subsequently acquitted, when determining the appropriate sentence for the drug offences. Additionally, the court needed to decide whether the trial judge should have considered the appellant's incarceration in respect of a pending charge that was not yet finalised.

The High Court held that while the incarceration in respect of the unrelated charge should have been taken into account, the incarceration for the pending charge was not to be considered. The court reasoned that the appellant's incarceration for the acquitted charge was a relevant factor in determining the sentence because it represented a period during which the appellant was deprived of liberty due to the criminal justice system's actions. However, the incarceration for the pending charge was not to be taken into account in this particular case because it did not represent a completed punishment for a criminal offence. The court found that no point of principle was involved in this decision, and thus, the appeal was dismissed.

The High Court did not make any final orders in this case, as the appeal was dismissed, and the original sentence imposed by the lower court stood. The court's decision clarified the appropriate factors to consider when determining a sentence for drug trafficking and possession, specifically regarding the relevance of incarceration for related and unrelated charges.

Orders