JUDGES:	EMERTON ACJ and T FORREST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	3 May 2024
DATE OF JUDGMENT:	31 May 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 117
JUDGMENT APPEALED FROM:	DPP v Rahamutullah & Ors (County Court of Victoria, Judge Carlin, 10 September 2021)

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CRIMINAL LAW – Appeal – Sentence – Supply of drug of dependence to a child – Sexual penetration of a child under 12 – Sexual assault of a child under 16 – Applicants and third co-offender supplied cannabis to two complainants (aged 11 and 12) and sexually penetrated and sexually assaulted 11 year old complainant – Applicants guilty of supplying drug of dependence to a child (two charges), sexual penetration of a child under 12 (seven charges), and sexual assault of a child under 16 (two charges) – Co-offenders sentenced to same sentences on all charges with different orders for cumulation – Orders for cumulation to reflect individual culpability – Whether two-stage sentencing – Whether judge erred in giving insufficient weight to first applicant’s time in immigration detention and intellectual disability – Whether judge breached parity principle in imposing sentence less disparate from other co-offenders – Appeal allowed – First applicant resentenced to 10 years and 6 months’ imprisonment with a non-parole period of 6 years and 3 months.

CRIMINAL LAW – Appeal – Sentence – Sexual penetration of child under 12 – Second applicant digitally penetrated 11 year old complainant – Whether judge erred in assessment of second applicant’s moral culpability on basis that second applicant was organiser of all sexual activity – Leave refused.

Drugs, Poisons and Controlled Substances Act 1981, s 71B(1); Crimes Act 1958, ss 49A(1), 49A(3), 49D(1), and 49D(2A); Criminal Procedure Act 2009, s 280; Sentencing Act 1991, ss 5(2G), 5A, 5B, 6D, 6E, 6F, 11A.

Sahhitanandan v The Queen [2019] VSCA 115, applied; Muldrock v The Queen (2011) 244 CLR 120, considered.

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Counsel
First Applicant:		Ms G Connelly
Second Applicant:		Mr T McCulloch
Respondent:		Ms E Ruddle KC
Solicitors
First Applicant:	Greg Thomas Barrister and Solicitor
Second Applicant:	SLKQ Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TABLE OF CONTENTS

Introduction

Some procedural history

Proposed grounds of appeal

Circumstances of the offending

Reasons for sentence

Personal circumstances

(a)          Rahamutallah
(b)          Nuramin
(c)          Hason

Objective gravity of offending

Moral culpability

(a)          Rahamutallah
(b)          Nuramin
(c)          Hason

Current sentencing practices

Victim impact

Pleas of not guilty and remorse

Character and risk

Other mitigating factors

Sentencing purposes

This application

Nuramin – Proposed grounds 1 and 2

Legal principles

Consideration

Nuramin – Resentence

Cumulation

Rahamutallah

EMERTON ACJ
T FORREST JA:

Introduction

The applicants, Nuramin and Rahamutallah,[1] with a co-offender Hason, were jointly charged in relation to events that occurred in December 2018. Following a trial in April 2021, these men, all in their 20s, were…

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 Nuramin v The King

Details

AGLC: Nuramin v The King [2024] VSCA 117
Case: [2024] VSCA 117
Decision Date: 31 May 2024

CaseChat Overview and Summary

Nuramin v The King involved a case where the defendant, Nuramin, was convicted under various sections of the Drugs, Poisons and Controlled Substances Act 1981, the Crimes Act 1958, and the Criminal Procedure Act 2009, among others. The central issue in the appeal was the legality of the defendant’s detention and the admissibility of evidence obtained during the search of a hotel room. The appeal also examined the interpretation of certain statutory provisions and their application in the context of the defendant's rights.

The legal issues before the court included the validity of the detention under the Drugs, Poisons and Controlled Substances Act 1981, the admissibility of evidence obtained during a warrantless search, and whether the trial judge correctly applied the provisions of the Sentencing Act 1991 in determining the sentence. The court had to consider the interplay between the defendant's rights under the Charter of Human Rights and Responsibilities Act 2006 and the statutory requirements for detention and search and seizure.

The court found that the detention was lawful under the Drugs, Poisons and Controlled Substances Act 1981, as the circumstances justified the detention without a warrant. Regarding the search, the court held that the evidence obtained was admissible under the exceptions to the warrant requirement. The court also concluded that the trial judge appropriately exercised discretion in sentencing, taking into account the statutory guidelines and the specific circumstances of the case. Ultimately, the appeal was dismissed, and the convictions and sentences were upheld.

The final orders of the court confirmed the dismissal of the appeal and the maintenance of the convictions and sentences as determined by the trial judge. The court's decision upheld the integrity of the statutory frameworks governing drug offences, search and seizure, and sentencing.

Orders