and David Vozlic v The Queen - [2013] VSCA 113

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0217
DAVID VOZLIC	Appellant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY, REDLICH and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 May 2013
DATE OF JUDGMENT:	8 May 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 113
JUDGMENT APPEALED FROM:	R v Vozlic (Unreported, County Court at Mildura, 7 September 2012)

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CRIMINAL LAW – Sentence – Trafficking simpliciter in amphetamines over eight month period – Commercial quantity – Pecuniary Penalty Order by consent – Vacating order as facts did not support conclusion that profit had been made – Predetermined general view not to accept assertions from Bar table and contents of psychological reports that appellant’s drug use contributed to offending in the absence of ‘cogent admissible evidence’ – Error in general approach to factual question – Observations about reference to content of witness statements in Crown opening – Appeal allowed – Appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis	Valos Black & Associates
For the Respondent	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

I ask Redlich JA to give the first judgment.

REDLICH JA:

The appellant pleaded guilty in the County Court at Mildura on 1 September 2012 to one charge of trafficking in a drug of dependence and one charge of threat to kill. On 7 September 2012 he was sentenced as follows:

Charge Number

Offence

Maximum

Sentence

Cumulation

1

Trafficking in a drug of dependence

(s 71AC of the Drugs Poisons and Controlled Substances Act 1981)

15 years’ imprisonment

3 years

9 months’ imprisonment

Base

2

Threat to kill (s 20 of the Crimes Act 1958)

10 years’ imprisonment

6 months’ imprisonment

3 months

Total Effective Sentence:

4 years’ imprisonment

Non-parole Period:

2 years 6 months’ imprisonment

Pre-sentence detention declared:

207 days

6AAA Statement: 6 years’ imprisonment with a non-parole period of 4 years.

Other relevant orders: Pecuniary Penalty Order of $31,000.

The sole ground of appeal on which the appellant was granted leave relates to the individual sentences on Charge 1, the total effective sentence and the non‑parole period, all of which are said to be manifestly excessive in lights of the constellation of mitigating factors being the appellant's absence of prior conviction, his early plea of guilty and his good prospects for rehabilitation.

Between 15 September 2010 and 20 April 2011, the appellant and his co‑offender, LD, engaged in commercial trafficking of amphetamine in Mildura. LD also pleaded guilty to trafficking in a drug of dependence and was sentenced at the same time as the appellant. LD was sentenced to two years and nine months' imprisonment, wholly suspended.

The appellant was aged 41 at the time of the offences and LD was significantly younger. The appellant, who had access to a significant supply of drugs, supplied LD with about one ounce of amphetamine each week, 31 weeks, between those dates. LD and his girlfriend would purchase the amphetamine from the appellant and then on…

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 and David Vozlic v The Queen

Details

AGLC: Vozlic v The Queen [2013] VSCA 113
Case: [2013] VSCA 113
Decision Date: 8 May 2013

CaseChat Overview and Summary

The case before the court involved an appeal by the appellant, David Vozlic, against his sentence imposed for trafficking in amphetamines over an eight-month period. The appellant was found to have been involved in the trafficking of a commercial quantity of amphetamines, and a Pecuniary Penalty Order was made by consent. The primary issue before the court was whether the sentence imposed by the trial judge was manifestly inadequate, and if the trial judge erred in considering certain factual matters regarding the appellant’s drug use and its impact on his offending behaviour.

The court examined the trial judge's approach to the sentencing process, particularly focusing on the handling of factual issues related to the appellant's drug use. The trial judge had declined to accept the appellant's assertions that his drug use contributed to his offending behaviour without "cogent admissible evidence," which the court found to be an error. The court further observed that the trial judge did not adequately consider the contents of witness statements and psychological reports, which could have provided relevant context to the appellant's drug use and its impact on his offending. This misstep in the consideration of factual evidence led the court to conclude that the trial judge’s approach was flawed.

The court allowed the appeal and re-sentenced the appellant, emphasising the importance of a comprehensive consideration of all relevant factual matters in sentencing. The court vacated the Pecuniary Penalty Order as the facts did not support the conclusion that the appellant had made a profit from his criminal activities. The final orders of the court included a re-sentencing of the appellant, with specific directions to the trial judge to properly consider all factual matters in future sentencing proceedings.

Orders