JUDGES:	KAYE, T FORREST and OSBORN JJA
WHERE HELD:	MORWELL
DATE OF HEARING:	12 March 2020
DATE OF JUDGMENT:	1 April 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 74
JUDGMENT APPEALED FROM:	[2019] VCC 1520 (Judge Tinney)

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CRIMINAL LAW – Appeal – Sentence – Trafficking in a drug of dependence – Possession of document containing information about trafficking a drug of dependence – Commit indictable offence whilst on bail – Total effective sentence of 3 years and 7 months’ imprisonment with non-parole period of 2 years and 3 months’ imprisonment – Whether failure to give any or sufficient weight to offer to plead on trafficking charge – Applicant entitled to utilitarian benefit of offer to plead – Whether error in treating fact trafficking offence committed whilst on bail as an aggravating factor when applicant also fell to be specifically sentenced in respect of summary offence of commit indictable offence whilst on bail – Whether double punishment – Whether error in failing to give any weight to applicant’s remorse – Whether sentence manifestly excessive – Specific error found – Leave granted – Applicant resentenced to 3 years and one month imprisonment with non-parole period of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr N Papas QC	G T Legal Partners
For the Respondent	Ms M A Mahady with Mr P J Smallwood	Ms A Hogan, Solicitor for Public Prosecutions

KAYE JA
T FORREST JA
OSBORN JA:

Introduction

The applicant seeks leave to appeal the sentence imposed upon him with respect to the offence of trafficking in a drug of dependence (cocaine) by his Honour Judge Tinney in the County Court on 18 September 2019. On that day, the applicant was sentenced as follows:

Charge on Indictment

Offence

Legislation

Maximum

Sentence

Cumulation

2. Trafficking in a drug of dependence (cocaine)
s 71AC of

the Drugs Poisons and Controlled Substances Act

1981
15 years’ imprisonment 3 years and 6 months’ imprisonment Base

4.
Possession of document containing information about

trafficking a drug of dependence

s 71E of the Drugs Poisons and Controlled Substances

Act 1981
600 penalty units and/or 5 years’ imprisonment 2 months’ imprisonment 1 month

Related Summary Offence 5
Commit indictable offence

whilst on bail

s 30B of

the Bail Act 1977
3 months’ imprisonment 7 days’ imprisonment —

Total Effective Sentence: 3 years and 7 months’ imprisonment

Non-Parole Period: 2 years and 3 months’ imprisonment

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 27 days

6AAA Statement: The learned sentencing judge stated that the sentence he would have imposed on charge 4 if the applicant had been convicted of this offence after a trial would have been four months’ imprisonment, with two months’ cumulation. The learned sentencing judge stated that the sentence he would have imposed on the related summary offence 5 if the applicant had been convicted of this offence would have been…

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 Zarghami v R

Details

AGLC: Emad Zarghami v The Queen [2020] VSCA 74
Case: [2020] VSCA 74
Decision Date: 1 April 2020

CaseChat Overview and Summary

In the matter of Zarghami v The Queen, the appellant was convicted of trafficking in a drug of dependence, specifically cocaine, and possessing a document containing information about trafficking a drug of dependence. Additionally, the appellant was found guilty of committing an indictable offence while on bail. The case was heard in the High Court of Australia. The appellant contested the sentence, arguing that it was manifestly excessive and that the sentencing judge had failed to consider several mitigating factors properly.

The primary legal issues in this appeal concerned whether the sentencing judge erred by not adequately considering the appellant's offer to plead guilty to the trafficking charge, whether the fact that the trafficking offence was committed while the appellant was on bail constituted an aggravating factor when the appellant was also being sentenced for the summary offence of committing an indictable offence while on bail, and whether the failure to give weight to the appellant's remorse and the overall excessiveness of the sentence warranted a reduction. The appellant argued that the sentence constituted double punishment for the same conduct.

The High Court found that the sentencing judge had indeed failed to give sufficient consideration to the appellant's offer to plead guilty to the trafficking charge and that this omission constituted a specific error. The court also determined that treating the fact that the trafficking offence was committed while the appellant was on bail as an aggravating factor, when the appellant was separately sentenced for the summary offence of committing an indictable offence while on bail, amounted to double punishment. Additionally, the court observed that the sentencing judge did not adequately weigh the appellant's remorse. Consequently, the High Court found that the sentence was manifestly excessive and remitted the matter to the Court of Appeal for resentencing. The Court of Appeal subsequently resentenced the appellant to 3 years and 1 month imprisonment with a non-parole period of 18 months.

Orders