R v Xeba - [2009] VSCA 205

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 716 of 2009

THE QUEEN	Respondent
v
ROVENA XEBA	Applicant/Appellant

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JUDGES	MAXWELL P and WEINBERG JA
WHERE HELD	MELBOURNE
DATE OF HEARING	31 July 2009
DATE OF JUDGMENT	17 September 2009
MEDIUM NEUTRAL CITATION	[2009] VSCA 205
JUDGMENT APPEALED FROM	R v Verdhi & Ors (reasons for sentence) (unreported, County Court of Victoria, Judge Punshon, 30 June 2009)

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CRIMINAL LAW – Appeal – Sentence – Giretti trafficking in drug of dependence – Two years of three year sentence suspended – Whether applicant’s role mischaracterised – Hardship for applicant’s children – Both parents in prison – Whether exceptional circumstances – Whether exercise of mercy called for – Whether exercise of mercy can give rise to appealable error – Whether sentence manifestly excessive – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms G Cannon	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant/Appellant	Mr R Melasecca	Melasecca Kelly & Zayler

MAXWELL P,
WEINBERG JA:

This is an application for leave to appeal against sentence imposed in the County Court on 29 June 2009. Ms Xeba pleaded guilty to two counts of trafficking in a drug of dependence. She was sentenced as set out in the table below.

Count Offence Maximum Sentence Cumulation

1 Traffick drug of dependence (heroin) 15y 33m BASE

2 Traffick drug of dependence (methyl-amphetamine) 15y 33m 3m

Total Effective Sentence: 36 months

Two years of sentence suspended for three years.

The application for leave to appeal was filed on 8 July 2009. In view of the family hardship issues raised by the application, it was arranged for the matter to be expedited, by having the application for leave to appeal and the appeal itself (if leave were granted) heard together. The hearing took place before a court constituted by two judges.[1]
[1]See r 2.03.1A of the Supreme Court (Criminal Procedure) Rules 2008 (Vic) and s 567(d) of the Crimes Act 1958 (Vic).

The Crown conceded that ground 1, contending that the sentence was manifestly excessive, was reasonably arguable. In our view, that concession was properly made and we would grant leave to appeal. For reasons which follow, however, we would dismiss the appeal.

Summary of facts

Between 4 July 2005 and 27 October 2005, Telemak Verdhi and his wife Zhuliana Verdhi were involved in the business of trafficking drugs, mainly in the Epping, Thomastown and Reservoir areas. Three others were involved. They were: the present applicant, Rovena Xeba (the niece of Zhuliana Verdi); Ahmet Xeba (Rovena Xeba’s husband); and Margarita Verdhi (Telemak Verdhi’s sister).

The respective roles played by the co-accused are referred to below, in relation to ground 5. It is sufficient for present purposes to say that the actual drug sales were made predominantly by Telemak Verdhi. Tasks such as mixing, packaging and storage occurred at the homes of Rovena and Ahmet Xeba and Margarita Verdhi.

The applicant’s role in the trafficking

Ground 5 reads as follows:

That the Learned Sentencing Judge made a…

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 Xeba

Details

AGLC: R v Xeba [2009] VSCA 205
Case: [2009] VSCA 205
Decision Date: 17 September 2009

CaseChat Overview and Summary

In the matter of the criminal appeal of R v Xeba, the High Court of Australia considered the appeal against sentence of Xeba, who was convicted of trafficking in a drug of dependence, specifically Giretti. The appeal centred on the imposition of a sentence by the lower court, which suspended two years of a three-year imprisonment term. Xeba argued that his role in the trafficking offence was mischaracterised by the lower court and that the sentence imposed was excessively harsh given the resulting hardship for his children, who were left without parental care as both parents were incarcerated.

The central legal issues before the court were whether the applicant's role in the offence was mischaracterised, and if the sentence imposed was manifestly excessive or inappropriate under the circumstances. Additionally, the court examined whether the exercise of mercy could give rise to an appealable error and if there were exceptional circumstances warranting a review of the sentence. The appeal also questioned whether the sentence, in light of the hardship it imposed on the applicant's children, could be considered manifestly excessive.

The court held that the applicant's role was correctly characterised by the lower court, and there were no grounds for mischaracterisation. The hardship faced by the applicant's children, while unfortunate, did not constitute exceptional circumstances warranting a review of the sentence. The court found that the sentence was proportionate to the offence and did not manifest any excessiveness. Furthermore, the court ruled that the exercise of mercy, in this case, did not amount to an appealable error. Consequently, the appeal was dismissed, and the original sentence was upheld.

Orders