SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0263
| KEMAL LATIF | Applicant |
| v | |
| THE QUEEN | Respondent |
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S APCR 2012 0264
| SERKAN NIYAZI | Applicant |
| v | |
| THE QUEEN | Respondent |
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S APCR 2012 0290
| HASSAN AZMI | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | WEINBERG and HARPER JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 19 February 2013 |
| DATE OF JUDGMENT | 13 March 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 51 |
| JUDGMENT APPEALED FROM | DPP v Latif (Unreported, County Court of Victoria, Judge Cannon, 23 October 2012) |
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CRIMINAL LAW — Two applications for leave to appeal against sentence (Latif & Niyazi) — Each applicant pleaded guilty to one count of cultivation of a commercial quantity of narcotic plants and one count of theft of electricity — Joint enterprise between applicants and two co-offenders — Total of 161 cannabis plants weighing 130 kilograms found inside shipping containers concealed behind false wall in factory — Each applicant received head sentence of three years, six months and two weeks’ imprisonment — Non-parole periods fixed of two years and four months (Latif) and two years and two months (Niyazi) — Crown opening alleged that co-offender (Azmi) had rented the factory and paid for shipping containers — Those allegations challenged by Azmi on plea — Whether sentencing judge entitled to find applicants’ remorse qualified by failure to be forthcoming as to how cultivation funded — No evidence that applicants aware of funding arrangements beyond those asserted in Crown opening — Irrelevant consideration taken into account — Whether different sentences should be imposed — Applicants offended while on bail for drug offence — Sophisticated hydroponic set-up — Leave to appeal granted but appeals dismissed.
CRIMINAL LAW — Application for leave to appeal against sentence (Azmi) — Applicant pleaded guilty to same counts as Latif & Niyazi — Total effective sentence of two years, four months and one week’s imprisonment with non-parole period of 15 months — Applicant suffering from dysthymic disorder — Whether sentencing judge erred in requiring a causal link between that condition and offending to reduce moral culpability — No such causal link necessary — Specific error established — Whether different sentence should be imposed — Objectively serious offending — Moral culpability reduced but nevertheless high — Leave to appeal granted but appeal dismissed — R v Verdins (2007) 16 VR 269; Tran v The Queen [2012] VSCA 110 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicants Latif and Niyazi | Dr G J Lyon SC and Ms C A Boston | Grigor Lawyers |
| For the Applicant Azmi | Mr G A Georgiou SC | Robert Stary Lawyers |
| For the Crown | Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA
HARPER JA:
The applicants, Kemal Latif, Serkan Niyazi and Hassan Azmi, each pleaded guilty in the County Court at Melbourne to one charge of having cultivated a commercial quantity of narcotic plants (charge 1), and one charge of theft of electricity (charge 2). A co-offender, Tahir Latif, pleaded guilty to one charge of cultivation…
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- AGLC
- Latif v The Queen [2013] VSCA 51
- Case
- [2013] VSCA 51
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the sentencing judge was entitled to consider the applicants' lack of candour about the funding of the cannabis cultivation as diminishing their remorse, and whether the sentences imposed were appropriate. The applicants argued that there was no evidence they knew about the funding arrangements beyond what was alleged in the Crown's opening statement. They also claimed that the judge had considered an irrelevant factor in sentencing. Regarding Azmi's appeal, the issue was whether the judge erred in requiring a causal link between his dysthymic disorder and his offending to reduce his moral culpability, and whether his sentence was appropriate given his reduced culpability.
The Court of Appeal held that the sentencing judge was entitled to consider the applicants' lack of candour and that this did not constitute an irrelevant consideration. The court found that the sentences imposed were appropriate given the sophistication of the operation and the applicants' prior offending history. In relation to Azmi's appeal, the Court of Appeal found that no causal link between his disorder and his offending was necessary to reduce his moral culpability. However, the court held that the sentence was still appropriate given the seriousness of the offending and Azmi's high level of moral culpability. The leave to appeal was granted in both cases, but the appeals were ultimately dismissed.
The court's final orders confirmed the sentences imposed by the County Court of Victoria. Latif and Niyazi's sentences were upheld, as was Azmi's sentence. The Court of Appeal found that the sentencing judge had not erred in their consideration of the applicants' remorse, the funding of the cannabis cultivation, or in imposing the sentences. The court also found that Azmi's dysthymic disorder did not necessitate a causal link with his offending to reduce his moral culpability, but that his sentence was still appropriate given the circumstances.
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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