R v Semaan - [2003] VSCA 163

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 315 of 2002

THE QUEEN
	v.
ALEX JOHN SEMAAN

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JUDGES:	BUCHANAN and VINCENT, JJ.A. and HARPER, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 October 2003
DATE OF JUDGMENT:	16 October 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 163

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Criminal Law – Sentence – Trafficking in a commercial quantity of a drug of dependence – Offender suffering from drug-related psychosis – Offence not caused by psychosis – Mental health normal at time of sentence – No reduction in sentence – Head term of 12 years' imprisonment and a minimum term of nine years' imprisonment did not indicate failure to give a discount for pleas of guilty.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R.A. Elston	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr O.P. Holdenson, Q.C.	Theo Magazis & Associates

BUCHANAN, J.A.:

On 22 October 2002, the applicant was arraigned in the County Court and pleaded guilty to a presentment containing one count of trafficking in a commercial quantity of the drug ecstasy (count 1), one count of trafficking in a commercial quantity of methylamphetamine (count 2) and one count of trafficking in ketamine (count 3). The trafficking in each case was alleged to have occurred between 1 July 2000 and 20 March 2001.

After a plea was made on behalf of the applicant, he was sentenced to be imprisoned for a term of ten years on count 1, a term of eight years on count 2 and a term of two years on count 3. Two years of the sentence on count 2 were cumulated on the sentence on count 1, producing a total effective sentence of 12 years' imprisonment. A non-parole period of nine years was fixed. The sentencing judge subsequently ordered the applicant to pay a pecuniary penalty in the sum of $282,228.

The applicant sought leave to appeal against the sentence and the pecuniary penalty order. The latter application has now been abandoned.

The Crown case was based upon the evidence of a woman who commenced to live with the applicant in July 2000 and some of the applicant’s customers, together with intercepted telephone conversations and police surveillance, which were the product of a covert operation which began in January 2001. The applicant was arrested on 20 March 2001.

The applicant conducted a wholesale business selling ecstasy, amphetamine and ketamine. The scale of the business was significant. Matters which indicated the size of the business included the sale of drugs worth between $20,000 and $25,000 over a period of three months by one customer of the applicant, the regular supply by the applicant to another customer of up to 200 ecstasy tablets at a time, a large number of recorded conversations evidencing sales of drugs over a period of days, and agreements to sell to an undercover policeman drugs for between $15,000 and $76,000. The police estimated that the street value of the drugs which the applicant agreed to sell to the undercover policeman…

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 Semaan

Details

AGLC: R v Semaan [2003] VSCA 163
Case: [2003] VSCA 163
Decision Date: 16 October 2003

CaseChat Overview and Summary

The parties in this case were the respondent, Mr Semaan, and the Crown. The dispute centred around the appropriate sentence for Mr Semaan, who had pleaded guilty to trafficking in a commercial quantity of a drug of dependence. The matter was heard in the Supreme Court of New South Wales. The central legal issues were whether the sentence imposed by the trial judge was manifestly excessive and whether it failed to appropriately account for Mr Semaan's drug-related psychosis and his guilty plea.

The court examined whether the sentence imposed was excessive in light of Mr Semaan's drug-related psychosis, which was not the cause of the offence. It was noted that Mr Semaan's mental health was normal at the time of sentencing, and therefore, his psychosis did not warrant a sentence reduction. The court also considered whether the sentence failed to appropriately account for Mr Semaan's guilty plea, but found that the head term of 12 years' imprisonment and the minimum term of nine years' imprisonment did not indicate a failure to provide a discount for pleas of guilty. The court concluded that the sentence was appropriate and not manifestly excessive.

In conclusion, the court upheld the sentence imposed by the trial judge, finding that it was not manifestly excessive and appropriately accounted for Mr Semaan's drug-related psychosis and guilty plea. No orders were made by the court beyond the affirmation of the sentence.

Orders