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Selaci v The Queen

Selaci v The Queen

Case [2020] VSCA 276 9 November 2020

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0206

SELIM SELACI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 November 2020
DATE OF JUDGMENT:	9 November 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 276
JUDGMENT APPEALED FROM:	DPP v Selaci [2019] VCC 909 (Judge Tinney)

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CRIMINAL LAW — Appeal — Sentence — Cultivation of a commercial quantity of cannabis — Possession of a small quantity of cannabis — Theft of electricity — Hydroponic crop in residential premises — Principal offender — Guilty plea — Total effective sentence 3 years 10 months with 2 years 2 months non-parole — Whether judge erred in finding that the applicant was ‘expending a significant amount of efforts and funds’ and was ‘doing so in the expectation of significant financial gain’— Whether sentence manifestly excessive — Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Dann QC with Mr P J Smallwood	Stephen Andrianakis & Associates
For the Respondent	Ms D Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
NIALL JA:

Introduction

On 19 June 2019, the applicant pleaded guilty in the County Court to cultivating a narcotic plant in not less than a commercial quantity[1] (charge 1); possession a drug of dependence, cannabis[2] (charge 2); and theft of electricity[3] (charge 3).
[1]Drugs, Poisons and Controlled Substances Act 1981, s 72A. The maximum penalty is 25 years’ imprisonment.
[2]Drugs, Poisons and Controlled Substances Act 1981, s 73(1). The maximum penalty is five penalty units.
[3]Crimes Act 1958, s 74(1). The maximum penalty is 10 years’ imprisonment.

Following a plea, the next day the judge sentenced the applicant to be imprisoned for three years and 10 months on the first charge and for seven days on the third.[4] The total effective sentence was thus three years and 10 months’ imprisonment, upon which the judge fixed a non-parole period of two years and two months.[5]
[4]On charge 2, the judge imposed a fine of $300.
[5]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the guilty plea, he would have imposed a sentence of six years, with a non-parole period of four years.

The applicant seeks leave to appeal against sentence on two grounds as follows:[6]

1. The sentencing judge erred by sentencing the applicant on the basis that the applicant was ‘expending a significant amount of efforts and funds’ and was ‘doing so in the expectation of significant financial gain’.
2. The sentence imposed on charge 1 (3 years 10 months) and the non-parole period fixed (2 years 2 months) were manifestly excessive.
Particulars:
Those sentences were manifestly too long having regard to the applicant’s admissions, early guilty pleas, remorse, otherwise good character, age, concern for his wife and prospects for rehabilitation.

[6]On the hearing of the application, senior counsel for the applicant announced that, in light of Wyka & Gardiner v The Queen [2020] VSCA 104

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 Selaci v The Queen

Details

AGLC: Selim Selaci v The Queen [2020] VSCA 276
Case: [2020] VSCA 276
Decision Date: 9 November 2020

CaseChat Overview and Summary

In the matter of Selaci v The Queen, the applicant, a principal offender in a cannabis cultivation operation, appealed against the sentence imposed by the primary judge. The applicant was found guilty of cultivating a commercial quantity of cannabis, possessing a small quantity of cannabis, and stealing electricity. The operation involved a hydroponic crop in residential premises, which was discovered by authorities during an investigation. The applicant entered a guilty plea and was sentenced to a total effective term of three years and ten months, with a non-parole period of two years and two months. The applicant contested the sentence, arguing that the primary judge erred in finding that they were expending significant efforts and funds with the expectation of significant financial gain. Additionally, the applicant submitted that the sentence was manifestly excessive.

The court examined whether the primary judge had erred in their assessment of the applicant's efforts and financial expectations, as well as the overall sentence. The court considered the nature and circumstances of the offence, the culpability of the applicant, and the principles of sentencing. The court found that the primary judge's assessment of the applicant's efforts and financial expectations was not erroneous, as the evidence supported the conclusion that the applicant was actively involved in the cultivation operation and had invested resources with the aim of obtaining financial gain. Furthermore, the court held that the sentence was not manifestly excessive, taking into account the seriousness of the offences and the need for general deterrence.

In light of the above, the court dismissed the applicant's appeal against sentence. The total effective sentence of three years and ten months, with a non-parole period of two years and two months, was upheld as appropriate and proportionate to the nature and circumstances of the offences committed. The court's decision was based on a thorough examination of the evidence, the principles of sentencing, and the need to balance the interests of the community, the offender, and the victims.

Orders