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Mohtadi v The Queen

Mohtadi v The Queen

Case [2018] VSCA 238 20 September 2018

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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 units

Trafficking 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…

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 Mohtadi v The Queen

Details

AGLC: Mohtadi v The Queen [2018] VSCA 238
Case: [2018] VSCA 238
Decision Date: 20 September 2018

CaseChat Overview and Summary

In the case of Mohtadi v The Queen, the respondent was convicted of cultivating a commercial quantity of cannabis, possessing a drug of dependence on two occasions, and stealing. The matter was heard in the Supreme Court of Victoria. The primary focus of the court was to determine whether the judge erred in assessing the level of remorse shown by the applicant and whether the judge correctly evaluated the impact of the applicant’s drug dependence on his moral culpability. Additionally, the court examined if the total effective sentence of three years and eight months was manifestly excessive.

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