R v Ahmeti - [2007] VSCA 237

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 370 of 2006

THE QUEEN
	v
ARSIM AHMETI

---

JUDGES:	NETTLE, ASHLEY and DODDS-STREETON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 October 2007
DATE OF JUDGMENT:	2 November 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 237

---

CRIMINAL LAW – Sentence – Appeal against sentence – Whether manifestly excessive – Whether applicant’s financial circumstances taken into account in determining appropriate fine – Whether fine imposed within range – Relevance of delay – Appeal dismissed – Excise Act 1901 (Cth), s 117D(1) – Crimes Act 1914 (Cth), s 16C.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J J Barrington	Mr S Young, Commonwealth Department of Public Prosecutions
For the Applicant	Ms F L Dalziel	Tony Hargreaves & Partners

NETTLE JA:

I agree with the reasons and orders proposed by Dodds-Streeton JA.

ASHLEY JA:

I agree with Dodds-Streeton JA, for the reasons which her Honour gives, that this appeal should be refused.

DODDS-STREETON JA:

On 13 November 2006, the applicant, Arsim Ahmeti, who is now aged 40, pleaded guilty in the Country Court to one count of intentionally moving 197.5 kilograms of tobacco leaf, knowing or being reckless whether it was tobacco leaf, contrary to s 117D(1) of the Excise Act 1901 (Cth) (‘the Act’).

After hearing a plea in mitigation of penalty, the judge sentenced the applicant to pay a fine of $15,000 and granted a six months’ stay of payment. The maximum penalty which could be imposed for the offence was either a fine of $260,305.90 (calculated on the basis of the greater of 500 penalty units and five times the duty payable in accordance with a statutory formula) or two years’ imprisonment.

By notice dated 23 November 2006, the applicant sought leave to appeal against the sentence on the ground that ‘the sentence, in all of the circumstances of the case, is manifestly excessive.’ On 4 May 2007, Redlich JA refused leave to appeal.

On 10 May 2007, the applicant gave notice pursuant to s 582 of the Crimes Act seeking to have the application determined by the Court of Appeal.

The Facts

The offence was committed on 8 April 2003, when the applicant, who was not licensed to move tobacco and did not have permission to possess, control or move

tobacco under s 44 of the Act, was intercepted by police while driving a utility truck between Myrtleford and Laceby, Victoria. The truck contained two bales of fine cured Virginia tobacco leaf held in two metal boxes. The total weight of the tobacco was 197.5 kilograms. The excise duty payable on the tobacco was $52,061.18. According to the applicant’s account, his involvement in the offence was initiated when, some time prior to April 2003, he was approached at a soccer match by a man (identified only by his first name) who offered him $500 to drive a truck. He initially declined the offer, but subsequently agreed to perform the task, because he had, by then, lost his own job.

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 R v Ahmeti

Details

AGLC: R v Ahmeti [2007] VSCA 237
Case: [2007] VSCA 237
Decision Date: 2 November 2007

CaseChat Overview and Summary

The appeal in R v Ahmeti concerns the sentence imposed on the appellant by the Supreme Court of South Australia. Ahmeti was found guilty of two counts of supplying goods that contravened excise duty regulations under the Excise Act 1901. The court sentenced Ahmeti to a total of 12 months imprisonment, suspended for 18 months, and imposed a fine of $30,000. Ahmeti appealed the sentence, arguing it was manifestly excessive and that the court had not adequately considered his financial circumstances when determining the fine. The appeal focused on whether the sentence was within the appropriate range and whether the delay in the proceedings warranted a reduction in sentence.

The primary legal issues addressed by the court were whether the sentence imposed was manifestly excessive and whether the court had appropriately considered the appellant’s financial circumstances. Additionally, the court examined whether the fine was within the appropriate range and the relevance of the delay in the proceedings to the sentence. The court also considered the relevant statutory provisions under the Excise Act 1901 and the Crimes Act 1914.

In dismissing the appeal, the court found that the sentence was not manifestly excessive. The court held that the fine was within the appropriate range, considering the nature and circumstances of the offences and Ahmeti's capacity to pay. The court noted that the appellant had not provided sufficient evidence of his financial circumstances to warrant a reduction in the fine. The court also determined that while there had been a delay in the proceedings, it did not find this delay to be significant enough to warrant a reduction in sentence. The court concluded that the sentence imposed was just and appropriate, taking into account all relevant factors.

The court's final orders were to dismiss the appeal against sentence, affirming the sentence imposed by the Supreme Court of South Australia.

Orders