R v Kheir
[2003] VSCA 209
•4 December 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 227 of 2002
| THE QUEEN |
| v. |
| MAHMOUD KHEIR |
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JUDGES: | ORMISTON, PHILLIPS and CALLAWAY, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4 December 2003 | |
DATE OF JUDGMENT: | 4 December 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 209 | |
Criminal Law - Sentencing - Trafficking in Amphetamine - Very small quantity - Mitigation including "mentally defective functioning" where 98% would do better - 200 days imprisonment manifestly excessive - 14 days imprisonment substituted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C.W. Beale | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Ms Z. Garde-Wilson | Pryles & Defteros |
CALLAWAY, J.A.:
The appellant, who is now aged 25, pleaded guilty in the County Court to one count of trafficking in amphetamine. He admitted one previous appearance in the Magistrates' Court in 1999 on a charge of being in possession of a regulated weapon and four previous convictions in the Magistrates' Court in 2000. None was for a drug related offence and he was released on a community based order. After hearing a plea for leniency on his behalf, the learned judge sentenced the appellant to 200 days' imprisonment, which was equal to the pre-sentence detention which, it was common ground, could be made the subject of a declaration under s.18 of the Sentencing Act 1991.
Leave to appeal was granted by Winneke, P. on 17 October 2003. At that stage the sole ground of appeal was that the sentence was manifestly excessive. No application was made to the Registrar to amend the grounds. The appellant's solicitor believed that either as particulars of the existing grounds, or as further grounds, counsel for the appellant would be able to argue, first, that the learned sentencing judge gave too much weight to personal deterrence; secondly, that his Honour gave insufficient weight to the appellant's limited criminality, lack of relevant priors, limited intellectual capacity and early plea of guilty, and, thirdly, that he imposed a sentence that offended the principles of parity. In the event, the case was argued as one of manifest excess, so nothing more need be said about that matter. We may treat the first and second proposed additional grounds as particulars of manifest excess of which the Crown has had adequate notice. No argument was advanced on parity.
The facts may be briefly stated. In October 2001 a police investigation began into the alleged drug trafficking activities of the appellant's father, Ali Kheir. One of his clients was a woman called Elizabeth Rissotto. She said that she contacted Ali Kheir in January 2002 with a view to buying amphetamines. He arranged for her to pick some up from "his boys", telling her to go to an address in Fawkner and wait there and that his boys would come and see her. She drove to the rendezvous, where she was met by four men in a BMW vehicle. One of them was the appellant and another was his brother. The brother handed Rissotto a plastic bag containing about half a gram of white powder, later identified as amphetamine. She paid him $50. The appellant played no active role in the transaction.
Before turning to counsels' submissions there are two other matters I should mention. The first is that in June 2003 the appellant pleaded guilty in the County Court to one count of aggravated burglary and two counts of intentionally causing injury. For those offences he was sentenced to 9 months' imprisonment. The second is that there are two other criminal proceedings pending against the appellant. The former matter is, as my brother Phillips observed in the course of the argument, relevant to the question of the appellant's prospect of rehabilitation.
Ms Garde-Wilson emphasized the very small quantity involved and the passive role played by her client, together with the matters in mitigation on which he relied below and relies again before us. He was 23 years of age at the time of the offending, with a wife and two young children. He had no previous court appearances or previous convictions related to drug trafficking and he entered an early plea of guilty. He had limited schooling and, very importantly, intellectual tests conducted by a psychologist showed him to have "mentally defective functioning" such that 98 per cent would do better. In those circumstances, Mr Carter's primary submissions was that, bearing in mind that the matter could have been dealt with in the Magistrates' Court, we should set aside the conviction and sentence and substitute an unconditional discharge. Her first alternative to that proposed disposition was a nominal fine. I took that to mean either without conviction or, in the further alternative, with conviction. Only in the last resort, she submitted, should there be a custodial sentence. She contended that such a sentence was not appropriate, but that in any event it should be very much less than 200 days' imprisonment.
Mr Beale conceded that the sentence was manifestly excessive. He maintained that a conviction was appropriate but conceded that, in the
circumstances of this case, a non custodial sentence would be open to this Court. That is not to say that we should impose it, but only that in counsel's submission it would be an available disposition.
I am quite satisfied that a conviction was properly recorded and that that conviction should not be disturbed. The appellant pleaded guilty to an offence that is rife in our community. It carries a maximum custodial penalty of 15 years' imprisonment and is one in relation to which general deterrence is of great importance. The appellant was not a drug addicted 15 year old succumbing to a spur of the moment temptation on the street. He went with his brother to a prearranged rendezvous to engage in a pestilential activity. Although his priors are not related to drug trafficking, he does not have an unblemished record to be prayed in aid. For similar reasons, notwithstanding that he took no active part in the transaction, I would not impose a fine. I think a sterner mark of the Court's denunciation of the trafficking is warranted.
Nevertheless the matters of mitigation on which Ms Garde-Wilson relies, or some of them, are entitled to considerable weight, especially, as I have already indicated, the appellants very low level of mental functioning. For such an offender in circumstances such as these a sentence of 200 days' imprisonment was, with respect, manifestly excessive. I would therefore allow the appeal. Should the other members of the Court agree, I would substitute a sentence of 14 days' imprisonment and make a fresh declaration regarding pre-sentence detention.
ORMISTON, J.A.:
I agree.
PHILLIPS, J.A.:
I also agree.
ORMISTON, J.A.:
The order of the court therefore is that the appeal be allowed, that the sentence imposed in the County Court be set aside and in lieu thereof the appellant be sentenced to a term of 14 days' imprisonment. The court will make a declaration in customary form that the appellant had served 14 days in custody and that that be noted in the records of the court.
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