SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0052
| JAMEL MOHTADI | The Applicant |
| v | |
| The Respondent | |
| THE QUEEN |
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| JUDGES: | KYROU and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 September 2018 |
| DATE OF JUDGMENT: | 20 September 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 238 |
| JUDGMENT APPEALED FROM: | DPP v Mohtadi [2018] VCC 110 (Judge Sexton) |
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CRIMINAL LAW – Sentence – Guilty plea – Charge of cultivate a commercial quantity of cannabis – Two charges of possess a drug of dependence – Charge of theft – Crop found at place of residence – Whether judge erred in finding that guilty plea was evidence of only some remorse as applicant had little choice but to plead guilty – Whether judge erred in finding that applicant’s drug dependence lowered his moral culpability only to a small extent – Total effective sentence 3 years 8 months – Whether manifestly excessive – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R F Edney | Sarah Tricarico Lawyers Pty Ltd |
| For the Respondent | Mr B Sonnet | Mr J Cain, Solicitor for Public Prosecutions |
KYROU JA
KAYE JA:
The applicant pleaded guilty, before a judge of the County Court, to one charge of cultivate a commercial quantity of cannabis, two charges of possess a drug of dependence, and one charge of theft. Following a plea made on his behalf, the applicant was sentenced to a total effective term of 3 years and 8 months’ imprisonment with a non-parole period of 20 months. That sentence was constituted as follows:
Charge
Offence Maximum Sentence Cumulation 1 Cultivate a commercial quantity of cannabis [Drugs, Poisons and Controlled Substances Act 1981 s 72A] 25 years’ imprisonment 3 years, 3 months Base 2 Possess a drug of dependence
[Drugs, Poisons and Controlled Substances Act 1981 s 73(1)]Trafficking excluded
1 year imprisonment
and/or 30 penalty unitsTrafficking not excluded
5 years’ imprisonment
and/or 400 penalty units[1]3 months 1 month 3 Possess a drug of dependence See charge 2 6 months 1 month 4 Theft [Crimes Act 1958 s 74(1)] 10 years’ imprisonment 6 months 3 months Total Effective Sentence: 3 years 8 months’ imprisonment Non-Parole Period: 20 months Pre-Sentence Detention Declared: 267 days 6AAA Statement: 7 years’ imprisonment with a non-parole period of 5 years Other orders:
Disposal Order pursuant to s 77(1) of the Confiscation Act 1997 for the forfeiture and destruction of various exhibits seized during the investigation in respect of charges 1 and 4.
Forensic Sample order pursuant to s 464ZF of the Crimes Act 1958 for the applicant to undergo a forensic procedure for the taking of an intimate sample consisting of saliva.[1]The sentencing judge was satisfied on the balance of probabilities that the offences subject to charges 2 and 3 were not committed for any purpose related to trafficking in the relevant drug of dependence.
The applicant seeks leave to appeal against sentence on the following three grounds:
Ground One
The sentencing judge erred in finding…
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- AGLC
- Mohtadi v The Queen [2018] VSCA 238
- Case
- [2018] VSCA 238
- Decision Date
CaseChat Overview and Summary
The court examined the arguments that the applicant had little choice but to plead guilty, thus questioning the judge’s conclusion that this plea demonstrated only some level of remorse. It also scrutinised the judge’s assessment that the applicant’s drug dependence only marginally reduced his moral culpability. The court delved into the principles of sentencing, considering the totality of the applicant's offending and the impact of his drug addiction on his criminal behaviour. The judge's discretion in balancing these factors was critically assessed to determine if it was exercised correctly.
Upon review, the court found that the judge appropriately exercised his discretion in evaluating the level of remorse and the influence of drug dependence on moral culpability. The court held that the sentencing judge had adequately considered all relevant factors and that the total effective sentence was not manifestly excessive. Consequently, the application for a reduction in sentence was dismissed. The court upheld the sentence imposed, affirming the judge's assessment and reasoning in arriving at the sentence.
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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