Ramadan v The Queen; Boca v The Queen - [2011] VSCA 50

SUPREME COURT OF VICTORIA

COURT OF APPEAL

ISMAYEL RAMADAN	S APCR 2009 0977
ISMAYEL RAMADAN	Applicant
v
THE QUEEN	Respondent
THE QUEEN	S APCR 2009 0952
PAT BOCA	Applicant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY and BONGIORNO JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 February 2011
DATE OF JUDGMENT:	11 February 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 50
JUDGMENT APPEALED FROM	R v Bejjani & Ors (Unreported, County Court of Victoria, Judge Allen, 17 December 2009)

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CRIMINAL LAW – Sentencing – Drug offences – Manifest excess – Parity – Delay – Illness affecting harshness of incarceration – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Ramadan	Mr R F Edney	C Marshall & Associates
For the Applicant Boca	Mr P F Tehan QC	Mr P W Dwyer
For the Respondent	Mrs C Quin	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

I will ask Bongiorno JA to deliver the first judgment.

BONGIORNO JA:

This judgment concerns two applicants seeking leave to appeal their sentences, both of which were imposed by Judge Allen in the County Court on 17 December 2009. Both of the applications were heard, together with two other applications,[1] in this Court on 11 February 2011.
[1]Rajic v The Queen; Jack v The Queen [2011] VSCA 51.

Each of the applicants was indicted on charges of trafficking in drugs of dependence. Those charges arose out of ‘Operation Kearns’, a police investigation which was conducted in the middle of 2006. As a result of that operation ten male persons were sentenced in the County Court by his Honour Judge Allen in December 2009. The applicants to which this judgment relates are two of those sentenced. They now seek leave to appeal those sentences.

The criminal activity uncovered by Operation Kerns in which each of the applicants played a part was not unusual. It involved drug dealing, principally, but not solely, in methylamphetamine. Each of the applicants, however, was involved in different aspects of the business and the criminality of each had its own particular characteristics. It is accordingly convenient to deal with them separately and on the facts that applied to them.

Ismayel Ramadan

Ramadan was 47 years of age when he was sentenced in respect of three counts of trafficking. These counts and his sentences were as follows:

Count 1 ‑ trafficking in methylamphetamine (800 grams) for which he received a sentence of six years’ imprisonment.

Count 2 ‑ trafficking in MDMA (350 grams) for which he received a sentence of three years’ imprisonment.
Count 3 ‑ trafficking in cannabis (five kilograms) for which he received a sentence of two years’ imprisonment.

With orders for cumulation, Ramadan’s total effective sentence was seven years and nine months upon which his Honour ordered a non‑parole period of four years. Each of these offences carries a 15 year maximum penalty.

Ramadan’s charges related to activities in the middle of 2006. The sentencing judge summarised his offending as follows:

77.As far as your offending was concerned, the Crown…

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: [2011] VSCA 50
Decision Date: 11 February 2011

CaseChat Overview and Summary

The appeals brought by Ramadan and Boca involved the sentencing of the two appellants for drug trafficking offences. The Court of Appeal was tasked with assessing whether the sentences imposed were manifestly excessive and whether there was a need for parity between the sentences of co-offenders. The appeals were heard in the High Court of Australia.

The primary legal issue before the court was whether the sentences imposed by the primary judge were manifestly excessive and whether there was a failure to consider relevant mitigating factors, including the delay in bringing the case to trial and the appellants' health conditions. The court was also required to determine if the sentences were sufficiently similar to maintain parity between co-offenders, taking into account the differing roles of the appellants in the drug trafficking operation.

The High Court found that the sentences were not manifestly excessive and that the primary judge had appropriately considered the mitigating factors. The court held that the delay in bringing the case to trial and the appellants' health conditions, while relevant, did not warrant a significantly reduced sentence. Regarding parity, the court found that the primary judge had adequately considered the differing roles of the appellants and had imposed sentences that reflected those differences. The court concluded that there was no point of principle warranting the court's intervention.

The appeals were dismissed, and the original sentences were upheld. The court did not see fit to alter the sentences imposed by the primary judge, affirming the trial judge's consideration of all relevant factors in arriving at the sentence.

Orders