Holmes CJ and Morrison JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:
The application for leave to appeal is refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to a number of counts, including trafficking in dangerous drugs, namely heroin and methylamphetamine; possession of dangerous drugs, namely methylamphetamine and 3,4‑methylenedioxymethamphetamine; possessing a quantity of mobile phones and two motor vehicles for use in the trafficking; and possession of dangerous drugs, namely methylamphetamine and cannabis – where the applicant was sentenced to 10 years imprisonment – where there was a declaration that the offence was a serious violent offence – where the applicant seeks leave to appeal against his sentence on the ground that it is manifestly excessive – where the applicant was the principal target of a police trafficking operation – where the applicant sourced large quantities of heroin and methylamphetamine – where the trafficking business ran by the applicant was “sophisticated and profitable” – where the applicant was arrested – where the applicant reoffended whilst on bail and was arrested again – where the applicant suffered from a psychiatric condition due to his life in and escape from Kosovo – where the applicant contended that the sentence was manifestly excessive due to his psychiatric difficulties – where the applicant submitted that the sentence was manifestly excessive as he did not reoffend on bail after being arrested for the second time – whether the sentence was manifestly excessive because the comparable cases do not support a 10 year sentence
[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.
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Details
AGLC
R v Ahmetaj [2015] QCA 248
Case
[2015] QCA 248
Decision Date
CaseChat Overview and Summary
The case of R v Ahmetaj involved the applicant, Mr Ahmetaj, appealing against his sentence following his conviction on multiple drug trafficking and possession charges. The applicant was found guilty of trafficking in dangerous drugs, possession of dangerous drugs, and possessing items for use in trafficking. The trial judge sentenced Mr Ahmetaj to 10 years imprisonment, with a declaration that the offence was a serious violent offence. The applicant argued that the sentence was manifestly excessive due to his psychiatric condition, which stemmed from his traumatic experiences in Kosovo and subsequent life difficulties.
The legal issues before the court were whether the sentence imposed on Mr Ahmetaj was manifestly excessive, considering his psychiatric condition and the fact that he did not reoffend after his second arrest. The court had to assess whether the sentence was disproportionate in light of the mitigating factors presented by the applicant, including his late plea and the unique circumstances of his life history, which included significant trauma and hardship.
The court held that the sentence was not manifestly excessive. The late plea, made under duress, and the unique circumstances of Mr Ahmetaj's life, which included significant trauma and hardship, did not justify a departure from the sentence imposed. The court noted that while Mr Ahmetaj's psychiatric condition and difficult background were significant, they did not render the sentence manifestly excessive. The court also considered that Mr Ahmetaj did not reoffend after his second arrest, which was a factor that could have potentially mitigated the sentence.
The court refused the application for leave to appeal, upholding the original sentence of 10 years imprisonment.
Orders
Orders of the court
The application for leave to appeal is refused.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Mr Ahmetaj was born on 6 January 1970. He was 40 to 42 years old when the offences occurred, and 44 years and eight months at sentencing. Some of his history is revealed in reports from Dr Ziukelis and Dr Yoxall:(a)he is Albanian or Montenegran, and raised from childhood in Kosovo; he experienced constant pressure and blatant discrimination throughout his life because of his Albanian background; lived with the need to be constantly vigilant about what he said; the father was harsh and instilled in him a sense of fear and need to be hyper-vigilant;(b)his mother was chronically ill with a congenital cardiac condition; she died when he was 19;(c)he completed secondary education but could not get work because of the displacement of Albanians; he and his family feared for their lives when the war in Kosovo was taking place;(d)he fled Kosovo when he was 20, and went to Slovenia; the journey was in December and he walked for weeks through deep snow; he then did not have contact with his family for about four years;(e)he went to the Netherlands when he was 27; the rest of the family ended up in the USA or Germany; he came to Australia in 1997 on a false passport, and spent nine months in detention at Villawood; that was a terrifying experience as attempted suicides and self-harm were a common sight; he found it an extremely depressing and hopeless environment;(f)he met his wife in 2000, and married in 2003; up to 2003 he was totally dependent on sponsors, then on his wife and her family, because under the bridging visa he had, there was no entitlement to work, and he was not entitled to Centrelink or Medicare assistance; he felt an absolute powerlessness to progress his life; being reliant on charity was a matter of shame to him; he also lived in fear of deportation;(g)in 2004 he started to use prescription medication for depression, and then more recently for diabetes;(h)in 2006 he started to use heroin to relieve distress, and he became addicted; he successfully underwent rehabilitation; he developed diabetes around 2007;(i)in 2007 he applied for permanent residency;(j)he was granted permanent residency which allowed him to be able to work and start to build a life; by that time he was in his late thirties, had little to no English proficiency and few job skills; he was also under treatment for severe and chronic Post-traumatic Stress Disorder and Major Depressive Disorder;(k)he and his wife opened a car sales yard in 2009, which included doing work on repairable write-offs and then on-selling vehicles; once they had an income they started to invest in property, and they completed a couple of small residential development projects.Evidence as to medical conditions. In 2004 Dr Ziukelis diagnosed Mr Ahmetaj as suffering from chronic Post Traumatic Stress Disorder (PTSD) with accompanying Major Depression. The source of that condition lay in the psychological injury sustained from before he arrived in Australia, and the shame and humiliation he felt over his predicament. As described by Dr Ziukelis:[10] he was constantly preoccupied with thoughts about the brutality seen and experienced in Kosovo; he suffered insomnia, getting up nightly after an hour or two and pacing the floor; he was constantly anxious, had episodes of panic and felt a constant sensation of pressure on his chest.[10]AB 113.
Decision
Reasons for decision
The late plea, and the circumstances in which it was made,[89] are matters which support the conclusion that the sentence imposed on Mr Ahmetaj was not manifestly excessive.[89]See paragraph [80] above. Conclusion For the reasons expressed above I would refuse the application for leave to appeal. MULLINS J: I agree with Morrison JA.