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…

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 Latif v The Queen

Details

AGLC: Latif v The Queen [2013] VSCA 51
Case: [2013] VSCA 51
Decision Date: 13 March 2013

CaseChat Overview and Summary

The appeals in Latif v The Queen involve applications for leave to appeal against sentences imposed by the County Court of Victoria. The applicants, Latif and Niyazi, pleaded guilty to cultivating a commercial quantity of cannabis and stealing electricity. They were part of a joint enterprise with two co-offenders. The court found 161 cannabis plants, weighing 130 kilograms, hidden in shipping containers within a factory. Latif and Niyazi were sentenced to three years, six months, and two weeks in prison, with non-parole periods of two years and four months, and two years and two months, respectively. Azmi, another co-offender, received a total effective sentence of two years, four months, and one week, with a non-parole period of 15 months. Azmi also appealed his sentence on the grounds of suffering from a dysthymic disorder.

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