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Rahmani v The Queen

Rahmani v The Queen

Case [2021] VSCA 51 12 March 2021

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0105

SHAHIN RAHMANI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and NIALL JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 November 2020
DATE OF JUDGMENT:	12 March 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 51
JUDGMENT APPEALED FROM:	[2019] VCC 306 (Judge Fox)

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ELECTION TO RENEW APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY THE COURT OF APPEAL PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Appeal – Sentence – Drug trafficking – Large commercial quantity of methylamphetamine – Possessing handgun, unregistered firearms – Total effective sentence 10 years and 9 months – Non-parole period 7 years and 3 months – Whether sentence and non-parole period manifestly excessive – Legislative hierarchy of trafficking offences – High moral culpability – Motivated by profit – No remorse – Sentence within range –Whether judge expressed settled intention regarding non-parole period – Appeal dismissed – Drugs, Poisons and Controlled Substances Act 1981 s 71 – Gregory (a pseudonym) v The Queen [2017] VSCA 151; Wallace v The Queen (2012) 35 VR 520; [2012] VSCA 114.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr O P Holdenson QC with Mr J O’Connor	Milides Lawyers
For the Respondent	Mr P Bourke SC	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
NIALL JA:

Summary

The applicant was found guilty after a trial on one charge of trafficking in a large commercial quantity (‘LCQ’) of methylamphetamine and one charge of possessing a general category handgun without a licence. On the trafficking charge, which carries a maximum penalty of life imprisonment, the applicant was sentenced to 9 years’ imprisonment. On the handgun charge, he was sentenced to 20 months’ imprisonment.

He pleaded guilty to four other charges respectively involving unregistered firearms, a precursor chemical and stolen goods. A total effective sentence of 2 years and 9 months’ imprisonment was imposed on those charges. Twelve months was ordered to be served cumulatively on the sentence imposed on the trafficking and handgun charges, producing a total effective sentence of 10 years and 9 months’ imprisonment. A non-parole period of 7 years and 3 months was fixed.

The applicant sought leave to appeal against three of the individual sentences, the total effective sentence and the non-parole period on the ground that they were manifestly excessive. The focus of the submission on that ground was on the sentence of 9 years’ imprisonment imposed on the trafficking charge. A separate ground contended that the sentencing judge, in imposing a non-parole period which represented 67 per cent of the head sentence, had failed to fulfil what was said to be her stated intention of imposing a shorter than usual non-parole period.

A single judge of this Court refused leave to appeal on the manifest excess ground, holding that it was not reasonably arguable. The judge did, however, grant leave on the ground relating to the non-parole period. That leave having been granted,…

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 Rahmani v The Queen

Details

AGLC: Shahin Rahmani v The Queen [2021] VSCA 51
Case: [2021] VSCA 51
Decision Date: 12 March 2021

CaseChat Overview and Summary

In the matter of Rahmani v The Queen, the appellant, Rahmani, appealed against his sentence for drug trafficking, possession of a handgun, and possessing unregistered firearms. The case was heard in the Victorian Court of Appeal. Rahmani was convicted of possessing a large commercial quantity of methylamphetamine, possessing a handgun, and possessing unregistered firearms. The primary issue before the court was whether the sentence imposed, a total effective sentence of 10 years and 9 months with a non-parole period of 7 years and 3 months, was manifestly excessive.

The court needed to determine if the sentence and non-parole period were within the range of sentences appropriate for the gravity of the offences, considering the legislative hierarchy of trafficking offences, the high moral culpability, and the offender's motivation by profit. Additionally, the court examined whether the judge had expressed a settled intention regarding the non-parole period. The court found that the sentence and non-parole period were within the appropriate range, considering the circumstances. The judge had also expressed a settled intention regarding the non-parole period, taking into account the offender's lack of remorse.

The appeal was dismissed, and the sentence and non-parole period were upheld. The court relied on relevant legislative provisions and precedents, including Drugs, Poisons and Controlled Substances Act 1981 s 71, Gregory (a pseudonym) v The Queen [2017] VSCA 151, and Wallace v The Queen (2012) 35 VR 520; [2012] VSCA 114. The court found that the sentence was appropriate for the gravity of the offences and that the judge had properly considered the relevant factors in determining the non-parole period.

Orders