Muaremov v The Queen - [2018] VSCA 298

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0126

REDZEP MUAREMOV	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and KAYE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 October 2018
DATE OF JUDGMENT:	14 November 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 298
JUDGMENT APPEALED FROM:	DPP v Muaremov (Unreported, County Court of Victoria, Morrish J, 23 March 2018)

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CRIMINAL LAW – Appeal – Sentence – Cultivation of narcotic plant (cannabis) – Cultivation simpliciter – Theft of electricity – Possession of unlicensed firearm – 2 years’ imprisonment on cultivation charge – Total effective sentence 2 years 6 months – Whether sentence manifestly excessive – Plea of guilty – Quantity-based sentencing regime – Cultivation at high end of range of quantities – Prospects of rehabilitation – Relevance of current sentencing – Leave to appeal refused.

EVIDENCE – Expert evidence – Evidence of mental functioning of applicant – Report from forensic psychologist – Non-compliance with Practice Note – Judge required revised report to be filed – Importance of compliance – Assistance to sentencing judges – Responsibility of practitioners and experts – Practice Note No 1 of 2017 – Sentencing Hearings: Expert Reports on Mental Functioning of Offenders.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S J Tovey	Malkoun & Co Lawyers
For the Respondent	Mr B L Sonnet	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P
KAYE JA:

Summary

This application raises, once again, the question of sentencing for the cultivation of marijuana for trafficking purposes. As so often, this case involved a sophisticated hydroponic operation, powered by stolen electricity.

Although the quantity of plants found amounted to a commercial quantity, the charge to which the applicant pleaded guilty was that of cultivation simpliciter. He was sentenced on the basis that the quantity cultivated was at the top end of the range of quantities for that offence. He was also sentenced for the theft of electricity as part of the cultivation operation, and for possession of firearms.

A sentence of two years’ imprisonment was imposed on the cultivation charge. The maximum penalty is 15 years’ imprisonment, signifying how seriously the community views this offence. The applicant now seeks leave to appeal against sentence, on the sole ground that the sentence is manifestly excessive.

In our opinion, leave to appeal must be refused. The sentence of two years on the cultivation charge was lenient, having regard to the maximum penalty and the objective gravity of the offending. The leniency of the sentence can be taken to reflect the fact that full weight was given to the matters relied on in mitigation.

One of the applicant’s contentions is that the sentence of two years was ‘out of step with current sentencing practices’. As the Crown points out, however, current sentencing is but one of the relevant sentencing considerations.[1] Moreover, this Court has previously drawn attention to the inadequacy of current sentencing for the offence of cultivating a commercial quantity of cannabis.[2] The sentence of two years imposed in…

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 Muaremov v The Queen

Details

AGLC: Muaremov v The Queen [2018] VSCA 298
Case: [2018] VSCA 298
Decision Date: 14 November 2018

CaseChat Overview and Summary

The appellant, Muaremov, appealed against his sentence following his conviction for the cultivation of a narcotic plant, theft of electricity, and possession of an unlicensed firearm. The case was heard in the High Court of Australia. The appellant sought to argue that his sentence was manifestly excessive. The appellant had pleaded guilty and the total effective sentence was two years and six months.

The primary legal issue was whether the sentence imposed by the trial judge was manifestly excessive. The appellant argued that the sentence for the cultivation charge, two years' imprisonment, was excessive given the high end of the range of quantities cultivated, and that his prospects of rehabilitation should have been considered more favourably. The appellant also contended that the sentencing judge had not properly considered his compliance with the Practice Note No 1 of 2017, which pertains to expert reports on the mental functioning of offenders.

The court found that the sentence was not manifestly excessive. It held that the trial judge had appropriately considered the appellant's prospects of rehabilitation and had not erred in the sentencing process. The court emphasised the importance of compliance with the Practice Note for the proper assistance of sentencing judges. Despite the appellant's arguments, the court concluded that the sentence was within the range of appropriate penalties for the offences committed.

The High Court refused leave to appeal, indicating that it did not consider the appeal to raise a question of law of general public importance.

Orders