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Ramezanian v The Queen

Ramezanian v The Queen

Case [2013] VSCA 71 4 April 2013

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0035

JAVAD RAMEZANIAN
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	HARPER and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 April 2013
DATE OF JUDGMENT:	4 April 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 71
JUDGMENT APPEALED FROM:	DPP v Ramezanian (Unreported, County Court of Victoria, Judge Parrish, 8 March 2013)

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CRIMINAL LAW − Sentence − Application for leave to appeal − One charge of importing a marketable quantity of a border controlled substance (morphine (198.9 grams), codeine (77.5 grams) and thebaine (52.7 grams)) contrary to s 307.2(1) of the Criminal Code (Cth) − One charge of possessing a border controlled drug reasonably suspected of having been unlawfully imported (opium) contrary to s 307.10(1) of the Criminal Code (Cth) − Plea of guilty − Total effective sentence of 12 months’ imprisonment, to be released after serving three months and upon giving a recognizance of $2,000 to be of good behaviour for two years − Fresh evidence − Exceptional circumstances − Applicant’s 11 year old son diagnosed with leukaemia on the day the applicant sentenced − Exercise of residual discretion − Leave granted and appeal allowed − Date for release on recognizance varied to equate with time already served − Markovic v The Queen [2010] VSCA 105 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J McLoughlin	Victoria Legal Aid
For the Respondent	Mr J Gullaci	Commonwealth Director of Public Prosecutions

HARPER JA:

This is an application for leave to appeal against sentence. The applicant is presently serving a total effective sentence, imposed as recently as 8 March this year, of 12 months’ imprisonment, to be released after serving three of those 12 months and upon his giving a recognisance of $2,000 to be of good behaviour for a period of two years.

There is one ground of appeal. It is, in effect, that as the result of fresh evidence, not available at the plea, concerning the subsequently diagnosed serious illness of the applicant’s elder son (a boy aged 11) and the consequential exceptional family hardship − and the increased hardship of imprisonment to the applicant himself − the applicant should be re-sentenced.

This is not an easy ground to make good, especially given that the applicant pleaded guilty to serious offences and the sentence imposed upon him was merciful.

The applicant had on the day of his conviction pleaded guilty to two charges. The first was that of importing on 14 March 2012 marketable quantities of each of morphine, codeine and thebaine. Section 314.4(1) of the Criminal Code (Cth) provides that a marketable quantity of each of morphine and of thebaine is two grams, and a marketable quantity of codeine is 10 grams. By comparison, the applicant imported 198.9 grams of pure morphine, 77.5 grams of pure codeine and 52.7 grams of pure thebaine. In doing so, he exposed himself to a maximum penalty of 25 years’ imprisonment.

The second charge to which the applicant pleaded guilty was…

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 Ramezanian v The Queen

Details

AGLC: Ramezanian v The Queen [2013] VSCA 71
Case: [2013] VSCA 71
Decision Date: 4 April 2013

CaseChat Overview and Summary

The case of Ramezanian v The Queen involves an application for leave to appeal a sentence imposed for drug importation and possession. The respondent, having pleaded guilty to one charge of importing a marketable quantity of various border controlled substances, including morphine, codeine, and thebaine, and one charge of possessing a border controlled drug reasonably suspected of having been unlawfully imported, was sentenced to a total of 12 months imprisonment, with a release after serving three months and the condition of a $2,000 recognizance for good behaviour for two years. The applicant sought leave to appeal the sentence, citing fresh evidence and exceptional circumstances that arose post-sentencing.

The legal issues before the court included whether the fresh evidence of the applicant's 11-year-old son being diagnosed with leukaemia on the day of sentencing constituted exceptional circumstances warranting a departure from the usual rules of appeal, and whether the exercise of the court's residual discretion was appropriate in the circumstances. The court had to consider the principles established in Markovic v The Queen regarding the assessment of exceptional circumstances in the context of sentencing appeals.

The court found that the diagnosis of the applicant's son with leukaemia on the day of sentencing constituted exceptional circumstances, given the significant personal and emotional impact on the applicant and his family. The court recognised the relevance of the fresh evidence in the context of the applicant's personal circumstances and the potential impact on the sentence. By applying the principles from Markovic v The Queen, the court determined that it was appropriate to exercise its residual discretion and grant leave for the appeal. Consequently, the appeal was allowed, and the date for the applicant's release on recognizance was varied to reflect the time already served.

The final orders of the court were that the leave to appeal was granted, the appeal was allowed, and the date for the applicant's release on recognizance was adjusted to account for the time already served. The court's decision highlights the importance of considering exceptional personal circumstances in the context of sentencing appeals.

Orders