R v Zahran - [2023] QCA 169

SUPREME COURT OF QUEENSLAND

CITATION:

R v Zahran [2023] QCA 169

PARTIES:

R
v
ZAHRAN, Yacob
(applicant)

FILE NO/S:

CA No 56 of 2023
DC No 110 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Beenleigh – Date of Sentence: 24 March 2023 (Chowdhury DCJ)

DELIVERED EX TEMPORE ON:

24 August 2023

DELIVERED AT:

Brisbane

HEARING DATE:

24 August 2023

JUDGES:

Dalton and Flanagan JJA and Henry J

ORDER:

Application for leave to appeal sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to and was sentenced for trafficking in cannabis, supplying cocaine, and possessing a mobile phone used in connection with trafficking – where the applicant was sentenced for the trafficking to three and a-half years’ imprisonment suspended after 12 months, for an operational period of three and a-half years and received a concurrent 10 month imprisonment for the supply and was convicted but not further punished for possession of a phone – whether the sentence was manifestly excessive

R v Cairns[2011] QCA 145, cited
R v L; Ex parte Attorney-General [1996] 2 Qd R 63; [1995] QCA 444, cited
R v McAway (2008) 191 A Crim R 475; [2008] QCA 401, cited
R v Nabhan; R v Kostopolous[2007] QCA 266, cited

COUNSEL:

A S McDougall for the applicant
S L Dennis for the respondent

SOLICITORS:

Dib & Associates for the applicant
Director of Public Prosecutions (Queensland) for the respondent

HENRY J: The applicant was for five months the principal of a syndicate of offenders that trafficked in cannabis at a predominately wholesale level. He pleaded guilty to trafficking in cannabis, supplying cocaine, and possessing a mobile phone used in connection with trafficking. For the trafficking, he was sentenced to three and a-half years’ imprisonment suspended after 12 months, for an operational period of three and a-half years. He received a concurrent 10 month imprisonment for the supply and was convicted but not further punished for possession of a phone.

He seeks leave to appeal his apparently moderate sentence on the ground it was manifestly excessive. He argues the severity of the sentence compels the inference the learned sentencing Judge did not give sufficient weight to the matters of mitigation in the applicant’s favour, particularly, the delay in resolution of the proceeding, the rehabilitation in the meantime and the circumstance that the applicant desisted offending of his own volition.

He submits the leave application should be granted and that on the appeal this Court should reduce the period of imprisonment to be served before suspension from 12 down to six months. Put another way, he hopes to reduce that period, which is already less than one-third of a moderate head sentence, down to a mere one-seventh of it. Leave should be refused because there is no prospect of such an appeal succeeding.

The applicant organised and directed the supply of…

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 Zahran

Details

AGLC: R v Zahran [2023] QCA 169
Case: [2023] QCA 169
Decision Date: 24 August 2023

CaseChat Overview and Summary

The applicant, in the case of R v Zahran, sought leave to appeal against the sentence imposed by the County Court of Victoria following a guilty plea to charges of trafficking in cannabis, supplying cocaine, and possessing a mobile phone used in connection with trafficking. The applicant had been sentenced to three and a half years’ imprisonment suspended after 12 months for trafficking, and received a concurrent 10 month imprisonment for the supply charge. The possession charge resulted in a conviction but no further punishment. The applicant contended that the sentence was manifestly excessive.

The legal issue before the court was whether the sentence imposed was manifestly excessive or inadequate. The court considered the principles of sentencing, the nature and circumstances of the offences, and the objective of the sentencing process, which is to ensure justice for all parties, including the community. The court examined the proportionality of the sentence in light of these considerations.

In determining the appeal, the court assessed the severity of the offences and the appropriate punishment for such crimes. It considered the mitigating factors presented, such as the applicant's early guilty plea, remorse, and personal circumstances. The court concluded that while the sentence was severe, it was not manifestly excessive or inadequate, taking into account the need to deter and rehabilitate the offender and protect the community. The court found that the sentence reflected a balanced approach, considering both the gravity of the offences and the mitigating factors. Consequently, the application for leave to appeal the sentence was refused.

Orders

Orders of the court

Application for leave to appeal sentence refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Zahran [2023] QCA 169
PARTIES:	R v ZAHRAN, Yacob (applicant)
FILE NO/S:	CA No 56 of 2023 DC No 110 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Beenleigh – Date of Sentence: 24 March 2023 (Chowdhury DCJ)
DELIVERED EX TEMPORE ON:	24 August 2023
DELIVERED AT:	Brisbane
HEARING DATE:	24 August 2023
JUDGES:	Dalton and Flanagan JJA and Henry J
ORDER:	Application for leave to appeal sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to and was sentenced for trafficking in cannabis, supplying cocaine, and possessing a mobile phone used in connection with trafficking – where the applicant was sentenced for the trafficking to three and a-half years’ imprisonment suspended after 12 months, for an operational period of three and a-half years and received a concurrent 10 month imprisonment for the supply and was convicted but not further punished for possession of a phone – whether the sentence was manifestly excessive R v Cairns[2011] QCA 145, cited R v L; Ex parte Attorney-General [1996] 2 Qd R 63; [1995] QCA 444, cited R v McAway (2008) 191 A Crim R 475; [2008] QCA 401, cited R v Nabhan; R v Kostopolous[2007] QCA 266, cited
COUNSEL:	A S McDougall for the applicant S L Dennis for the respondent
SOLICITORS:	Dib & Associates for the applicant Director of Public Prosecutions (Queensland) for the respondent