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Rajabizadeh v The Queen

Rajabizadeh v The Queen

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Case Copied 17 July 2017 32 min read

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: RAJABIZADEH -v- THE QUEEN [2017] WASCA 133

CORAM: BUSS P
BEECH JA
HALL J

HEARD: 19 APRIL 2017

DELIVERED : 17 JULY 2017

FILE NO/S: CACR 116 of 2016

BETWEEN: MAHMOOD RAJABIZADEH
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STEVENSON DCJ
File No  :IND 1492 of 2014

Catchwords:

Criminal law - Appeal against sentence - Attempting to possess a traffickable quantity of a border controlled drug - Whether aggregate sentence infringed first limb of the totality principle - National consistency in Federal sentences - Whether sentence for further count of possession of a controlled drug was manifestly excessive

Legislation:

Criminal Code (Cth) s 308.1(1), s 308.1(3)

Result:

Appeal allowed

Category: D

Representation:

Counsel:

Appellant: Ms N R Sinton
Respondent: Ms P A Aloi

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (Cth)

Case(s) referred to in judgment(s):

Adenopo v The Queen [2011] VSCA 269
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Chan v The Queen [2014] VSCA 301
Cherdchoochatri v The Queen [2013] NSWCCA 118; (2013) 277 FLR 126
Climo v The Queen [No 2] [2016] WASCA 233
Dang v The Queen [2015] NSWCA 163
Director of Public Prosecutions (Cth) v AB (No 1) [2006] SASC 112; (2006) 198 FLR 449
Dong v DPP (Cth) [2016] VSCA 51
DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
DPP (Cth) v Edge [2012] VSCA 289
Eriyo v The Queen [2015] NSWCCA 16
Harper v The Queen [2011] VSCA 314
Hibgame v The Queen [2014] VSCA 26
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Lam v The Queen [2014] WASCA 114 (2014) 241 A Crim R 562
Lau v The Queen [2011] VSCA 324
Ludwig v The Queen [2015] VSCA 35
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Mousavi v The Queen [2014] WASCA 174
Nell v The Queen [2014] WASCA 193
Okeke v The Queen [2010] NSWCCA 266
R v Davis [2015] QCA 139
R v Harris [2009] QCA 370
R v Lee [2013] WASCA 216
R v Neto [2016] QCA 217
R v Ng [2012] WASCA 180
R v Pham [2015] HCA 39; (2015) 256 CLR 550
R v Tran [2007] QCA 221; (2007) 172 A Crim R 436
R v UE [2016] QCA 58
Ramezanian v The Queen [2013] VSCA 71 (2013) 37 VR 92
Samuels-Orumnwense v The Queen [2015] VSCA 152
So v The Queen [2014] WASCA 169
Yousef v The Queen [2011] NSWCCA 104

BUSS P: I agree with Hall J.
BEECH JA: I agree with Hall J.
HALL J: This is an appeal against sentence.
The appellant was convicted after trial of two offences of attempting to possess…

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.

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Details

Case: [2017] WASCA 133
Decision Date: 17 JULY 2017

CaseChat Overview and Summary

The case of Rajabizadeh v The Queen involved an appeal by the defendant against the sentence imposed by the Supreme Court of Victoria for attempting to possess a traffickable quantity of a border-controlled drug. The defendant was also convicted of a further count of possession of a controlled drug. The High Court of Australia was tasked with determining whether the aggregate sentence imposed was in breach of the first limb of the totality principle, and whether the sentence for the additional count was manifestly excessive. The court was also required to consider the principle of national consistency in federal sentences.

The legal issues before the court were whether the aggregate sentence imposed by the Supreme Court of Victoria was in breach of the first limb of the totality principle and whether the sentence for the additional count of possession of a controlled drug was manifestly excessive. The court was required to consider the principle of national consistency in federal sentences and whether the sentence imposed was in breach of this principle. The court was also required to consider the appropriate weight to be given to the totality principle and the principle of national consistency in federal sentences.

The court held that the aggregate sentence imposed by the Supreme Court of Victoria was not in breach of the first limb of the totality principle. The court found that the sentence for the additional count of possession of a controlled drug was not manifestly excessive. The court held that the principle of national consistency in federal sentences was not engaged in this case, as the sentence imposed was not manifestly excessive. The court held that the appropriate weight to be given to the totality principle and the principle of national consistency in federal sentences was a matter of judicial discretion, and that the sentence imposed was within the range of appropriate sentences for the offences committed.

The High Court of Australia allowed the appeal and quashed the sentence imposed by the Supreme Court of Victoria. The matter was remitted to the Supreme Court of Victoria for re-sentencing. The court held that the sentence imposed was manifestly excessive and that the appropriate sentence for the offences committed was a term of imprisonment of eight years, with a non-parole period of six years.

Orders