R v Alizadeh - [2017] QCA 269

SUPREME COURT OF QUEENSLAND

CITATION:

R v Alizadeh [2017] QCA 269

PARTIES:

R
v
ALIZADEH, Shaen Samani
(applicant)

FILE NO/S:

CA No 113 of 2017
SC No 524 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)
Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 19 May 2017 (Boddice J)

DELIVERED ON:

10 November 2017

DELIVERED AT:

Brisbane

HEARING DATE:

22 August 2017

JUDGES:

Sofronoff P and Morrison and McMurdo JJA

ORDERS:

1.   Amend the verdict and judgment record by, for each of the offences:

(a)   deleting the words “under 16 years”;

(b)   deleting “6(1)(a) & 6(2)(a)” and substituting “6(1)(b) & 6(2)(aa)”.

2.   Extend time to appeal against the conviction on all counts.

3.   Dismiss the appeal against conviction on all counts.

4.   Refuse leave to appeal against sentence.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING PROCEDURE – FACTUAL BASIS FOR SENTENCE – ROLE OF GUILTY PLEA OR DEPOSITIONS – where the applicant was arraigned upon seven counts of the supply of a schedule 1 dangerous drug to a minor – where the supply was to teenage girls who were under the age of 16 years but the applicant contended that he was under a mistake of fact that they were over 16 years but under 18 years – where the applicant pleaded guilty to the offences on that basis – where the indictment as originally presented referred to s 6(1)(a) and s 6(2)(a) Drugs Misuse Act 1986 (Qld) (the DMA), which relate to supply to a minor under 16 years – where the allocutus was administered for a conviction of ‘supplying a dangerous drug with a circumstance of aggravation’, without that circumstance of aggravation being specified – where the verdict and judgment recorded a conviction for ‘aggravated supply of dangerous drugs under schedule 1 to a minor under 16 years’ – where the applicant argued that he was wrongly convicted of seven offences under s 6(1)(a) and s 6(2)(a) of the DMA when he should have been convicted only of offences under s 6(1)(b) and s 6(2)(aa) of the DMA, which relate to supply to a minor over 16 years – where, on sentence, the prosecutor did not refer to which maximum penalty applied – where the sentencing judge appeared to have sentenced the applicant upon the factual premise that the applicant had believed that each of the girls was aged at least 16 years – whether each circumstance of aggravation in s 6 of the DMA creates a distinct offence – whether the applicant was wrongly convicted of an offence under s 6(1)(a) and 6(2)(a) of the DMA – whether the applicant should be resentenced

Criminal Code (Qld), s 1, s 564(2)
Criminal Practice Rules 1999 (Qld), r 15
Drugs Misuse Act 1986 (Qld), s 6, s 129

COUNSEL:

B J Power for the applicant
J A Wooldridge for the respondent

SOLICITORS:

Fisher Dore for the applicant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: I agree with the reasons…

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 Alizadeh

Details

AGLC: R v Alizadeh [2017] QCA 269
Case: [2017] QCA 269
Decision Date: 10 November 2017

CaseChat Overview and Summary

The case of R v Alizadeh involved the applicant who was arraigned on seven counts of supplying a schedule 1 dangerous drug to minors. The applicant contended that he was under a mistaken belief that the teenage girls, who were actually under 16 years of age, were over 16 but under 18 years old. He pleaded guilty on the basis of this mistaken belief. The original indictment referred to sections 6(1)(a) and 6(2)(a) of the Drugs Misuse Act 1986 (Qld), which pertain to the supply of drugs to minors under 16 years. However, the allocutus did not specify the circumstance of aggravation, and the verdict and judgment recorded a conviction for aggravated supply of dangerous drugs to minors under 16 years. The applicant argued that he should have been convicted under sections 6(1)(b) and 6(2)(aa) of the DMA, which relate to supplying drugs to minors over 16 years.

The court was required to determine whether each circumstance of aggravation in section 6 of the DMA creates a distinct offence, and whether the applicant was wrongly convicted of offences under sections 6(1)(a) and 6(2)(a) of the DMA. The court also had to consider whether the applicant should be resentenced. The sentencing judge appeared to have sentenced the applicant based on the premise that the applicant believed each girl was at least 16 years old, but the prosecutor did not specify which maximum penalty applied during sentencing. The applicant's argument was that he should have been convicted and sentenced under sections 6(1)(b) and 6(2)(aa) of the DMA, which pertain to supplying drugs to minors over 16 years.

The court found that each circumstance of aggravation in section 6 of the DMA does indeed create a distinct offence. Consequently, the applicant was wrongly convicted under sections 6(1)(a) and 6(2)(a) of the DMA. The court ordered that the verdict and judgment record be amended by deleting the words "under 16 years" and replacing "6(1)(a) & 6(2)(a)" with "6(1)(b) & 6(2)(aa)" for each of the offences. The court extended the time to appeal against the conviction on all counts, dismissed the appeal against conviction, and refused leave to appeal against the sentence.

Orders

Orders of the court

1. Amend the verdict and judgment record by, for each of the offences:

(a) deleting the words “under 16 years”;

(b) deleting “6(1)(a) & 6(2)(a)” and substituting “6(1)(b) & 6(2)(aa)”.

2. Extend time to appeal against the conviction on all counts.

3. Dismiss the appeal against conviction on all counts.

4. Refuse leave to appeal against sentence.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Alizadeh [2017] QCA 269
PARTIES:	R v ALIZADEH, Shaen Samani (applicant)
FILE NO/S:	CA No 113 of 2017 SC No 524 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction) Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 19 May 2017 (Boddice J)
DELIVERED ON:	10 November 2017
DELIVERED AT:	Brisbane
HEARING DATE:	22 August 2017
JUDGES:	Sofronoff P and Morrison and McMurdo JJA
ORDERS:	1. Amend the verdict and judgment record by, for each of the offences: (a) deleting the words “under 16 years”; (b) deleting “6(1)(a) & 6(2)(a)” and substituting “6(1)(b) & 6(2)(aa)”. 2. Extend time to appeal against the conviction on all counts. 3. Dismiss the appeal against conviction on all counts. 4. Refuse leave to appeal against sentence.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCING PROCEDURE – FACTUAL BASIS FOR SENTENCE – ROLE OF GUILTY PLEA OR DEPOSITIONS – where the applicant was arraigned upon seven counts of the supply of a schedule 1 dangerous drug to a minor – where the supply was to teenage girls who were under the age of 16 years but the applicant contended that he was under a mistake of fact that they were over 16 years but under 18 years – where the applicant pleaded guilty to the offences on that basis – where the indictment as originally presented referred to s 6(1)(a) and s 6(2)(a) Drugs Misuse Act 1986 (Qld) (the DMA), which relate to supply to a minor under 16 years – where the allocutus was administered for a conviction of ‘supplying a dangerous drug with a circumstance of aggravation’, without that circumstance of aggravation being specified – where the verdict and judgment recorded a conviction for ‘aggravated supply of dangerous drugs under schedule 1 to a minor under 16 years’ – where the applicant argued that he was wrongly convicted of seven offences under s 6(1)(a) and s 6(2)(a) of the DMA when he should have been convicted only of offences under s 6(1)(b) and s 6(2)(aa) of the DMA, which relate to supply to a minor over 16 years – where, on sentence, the prosecutor did not refer to which maximum penalty applied – where the sentencing judge appeared to have sentenced the applicant upon the factual premise that the applicant had believed that each of the girls was aged at least 16 years – whether each circumstance of aggravation in s 6 of the DMA creates a distinct offence – whether the applicant was wrongly convicted of an offence under s 6(1)(a) and 6(2)(a) of the DMA – whether the applicant should be resentenced Criminal Code (Qld), s 1, s 564(2) Criminal Practice Rules 1999 (Qld), r 15 Drugs Misuse Act 1986 (Qld), s 6, s 129
COUNSEL:	B J Power for the applicant J A Wooldridge for the respondent
SOLICITORS:	Fisher Dore for the applicant Director of Public Prosecutions (Queensland) for the respondent