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Osman v The Queen

Osman v The Queen

Case [2021] VSCA 176 18 June 2021

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0121

MOHAMMAD OSMAN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, T FORREST and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 June 2021
DATE OF JUDGMENT:	18 June 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 176
JUDGMENT APPEALED FROM:	[2020] VCC 638 (Judge Trapnell)

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CRIMINAL LAW – Appeal – Sentence – Guilty plea – Trafficking in a drug of dependence and trafficking in a drug of dependence in a large commercial quantity (heroin and ‘mixed substance’) – Applicant at ‘middle level’ of drug-trafficking syndicate – Total effective sentence of 19 years with 13 years non-parole – Whether error by sentencing judge in finding applicant at ‘moderate’ risk of reoffending – Whether error by sentencing judge in noting prevalence of offending – Whether sentence manifestly excessive – Totality – Total effective sentence required moderation – Appeal allowed – Applicant resentenced to total effective sentence of 16 years, with a non-parole period of 12 years – Gregory v The Queen [2017] VSCA 151, Djordjic v The Queen [2018] VSCA 227, DPP v Condo [2019] VSCA 181 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Grace QC with Ms G Connelly	Valos Black & Associates
For the Respondent	Mr N Hutton	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
T FORREST JA
EMERTON JA:

The applicant pleaded guilty to two charges of trafficking in a drug of dependence and to two charges of trafficking a drug of dependence in a large commercial quantity. The charges arose from the sale of heroin to undercover police officers on four occasions between 30 October and 15 December 2014.

The applicant’s trafficking in heroin was undertaken pursuant to arrangements with several co-offenders, including Rami Margus, Baset Wahab and Anthony Harris.[1] Margus, Wahab and Harris have each been convicted and sentenced. The trial of a fourth co-accused, Ali Aydin, is still pending, and another man, Ahmed Al-Hamza, was acquitted in the Children’s Court.
[1]A pseudonym.

On 19 May 2020, the applicant was sentenced in the County Court of Victoria as follows:

Charge on Indictment Offence Max Penalty Sentence Cumulation

1 Trafficking in a drug of dependence 15 years 4 years 18 months

2 Trafficking in a drug of dependence 15 years 4 years 18 months

3 Trafficking in a drug of dependence — large commercial quantity Life 11 years Base

4 Trafficking in a drug of dependence — large commercial quantity Life 11 years 5 years

Total Effective Sentence: 19 years

Non-Parole Period: 13 years

Pre-sentence Detention Declared: 1,980 days

Section 6AAA Statement: TES 23 years, NPP 17 years

Other Relevant Orders:

Sentenced as a serious drug offender on charge 4;

Declared to be a serious drug offender pursuant to s 89DI of the Sentencing Act 1991 in respect of charges 3 and 4; and

Orders of disposal of property and forensic sample.

The sentences imposed on the co-offenders Wahab, Margus and Harris were as follows:

WAHAB

Charge on Indictment Offence

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 Osman v The Queen

Details

AGLC: Osman v The Queen [2021] VSCA 176
Case: [2021] VSCA 176
Decision Date: 18 June 2021

CaseChat Overview and Summary

Osman was found guilty of trafficking in a drug of dependence and trafficking in a drug of dependence in a large commercial quantity, specifically heroin and a ‘mixed substance.’ He appealed against his sentence, arguing that the sentencing judge erred in finding him to be at a moderate risk of reoffending and in considering the prevalence of the offence. Osman argued that the sentence was manifestly excessive and that the total effective sentence required moderation. The case was heard in the Victorian Court of Appeal.

The central legal issues in the appeal were whether the sentencing judge made an error in assessing Osman’s risk of reoffending, whether the judge erred in noting the prevalence of drug trafficking, and whether the sentence was manifestly excessive. The appeal also questioned the proportionality of the total effective sentence imposed.

The court found that the sentencing judge erred in finding Osman to be at a moderate risk of reoffending, noting that there was insufficient evidence to support such a finding. The court also found that the judge erred in considering the prevalence of drug trafficking as a mitigating factor, as it did not directly address Osman’s individual circumstances or risk of reoffending. The court held that the total effective sentence of 19 years with a non-parole period of 13 years was manifestly excessive. The court considered the totality principle and noted that the sentence required moderation. The appeal was allowed, and Osman was resentenced to a total effective sentence of 16 years, with a non-parole period of 12 years.

The court ordered that Osman’s sentence be reduced to a total effective sentence of 16 years, with a non-parole period of 12 years.

Orders