Zandi v The Queen - [2015] VSCA 24

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0113

MUHAMMED REZA ZANDI	Appellant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 February 2015
DATE OF JUDGMENT:	17 February 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 24
JUDGMENT APPEALED FROM:	DPP v Zandi [2014] VCC 656 (Judge Maidment)

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CRIMINAL LAW – Sentence – Attempt to possess a marketable quantity of a controlled drug – Appellant purchased substituted cocaine – Whether seriousness of offence diminished – Whether sentence manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr O P Holdenson QC	Lewenberg & Lewenberg
For the Crown	Mr D J Lane	Commonwealth Director of Public Prosecutions

THE COURT:

Introduction

On 4 September 2014 a judge of this Court granted leave to the appellant to appeal against a sentence of seven (7) years’ imprisonment, with a non-parole period of four (4) years, imposed upon him by a judge of the County Court on 12 May 2014, following his plea of guilty to one count of attempting to possess a marketable quantity of a border controlled drug,[1] cocaine. The grant of leave was limited to a single ground which claims that the total effective sentence and non-parole period are manifestly excessive.
[1]Criminal Code (Cth), ss 307.6(1), 11.1(1). The maximum penalty is 25 years’ imprisonment.

For the reasons that follow, we would dismiss the appeal.

The offending, arrest and committal

In granting leave to appeal, the judge described the offending as follows:

… The [appellant] appears to have been suspected by the Australian Federal Police (‘AFP’) of an involvement in illegal drug activities. In early July 2012, the police obtained various Surveillance Device and Telecommunications Interception Warrants enabling them to conduct close surveillance of the [appellant]’s activities.
On the afternoon of 15 July 2012, the [appellant] met with a Federal Bureau of Investigation (‘FBI’) undercover operative at a restaurant on the Gold Coast. At that time, the FBI operative introduced the [appellant] to an AFP undercover operative who used the name ‘Danny’. The purpose of that meeting was to enable the [appellant] to make what he thought were arrangements to purchase cocaine that was to be imported into Australia from the United States. The meeting was recorded. The transcript revealed that the [appellant] was looking to make regular purchases of cocaine, seemingly on an ongoing basis. He was told that the price would be $120,000 per kilogram. He said that he was happy with that figure, and indicated that he would be prepared to purchase five kilograms of the drug. It was agreed that he would pay a deposit of $25,000 per kilogram.
The [appellant] asked the FBI operative whether he owned a BlackBerry device. When told that he did not, the [appellant] offered to supply one for $2,200. He indicated that the device could be used to exchange encrypted messages.
Subsequently, between 24 and 27 July 2012, the [appellant] sent ‘Danny’ a series of messages. These culminated in a meeting…

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 Zandi v The Queen

Details

AGLC: Zandi v The Queen [2015] VSCA 24
Case: [2015] VSCA 24
Decision Date: 17 February 2015

CaseChat Overview and Summary

The case of Zandi v The Queen involved the appellant, Zandi, who was convicted of attempting to possess a marketable quantity of a controlled drug. Zandi had purchased what he believed to be cocaine but was in fact a substituted substance. The matter was heard in the High Court of Australia, which was called upon to assess the severity of the sentence imposed by the lower courts.

The primary legal issues before the Court were whether the seriousness of the offence was diminished by the fact that the substance purchased was not the actual controlled drug, and whether the sentence imposed was manifestly excessive. Zandi argued that the substitution of the drug significantly reduced the gravity of the offence, and as such, the sentence should be reconsidered. Additionally, the Court had to determine whether the punishment met the legal standards for proportionality and justice.

The Court carefully examined the circumstances of the offence and the sentencing principles involved. It was noted that the offence of attempting to possess a controlled drug carries significant penalties, but the substitution of the drug did play a role in assessing the culpability and intent of the offender. While the substitution did mitigate the seriousness, the Court held that it did not sufficiently reduce the culpability to warrant a significantly lower sentence. The Court found that the sentence was within the bounds of proportionality and did not consider it manifestly excessive. The appeal was ultimately dismissed, affirming the original sentence.

The final orders of the Court were that the appeal against the sentence was dismissed, and the original sentence imposed by the lower courts was upheld. The Court's decision reaffirmed the importance of considering both the nature of the offence and the culpability of the offender when determining an appropriate sentence.

Orders