Arnautovic v The Queen - [2012] VSCA 112

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0608
DRAGAN ARNAUTOVIC	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WARREN CJ and REDLICH and HANSEN JJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	1 May 2012
DATE OF JUDGMENT:	14 June 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 112
JUDGMENT APPEALED FROM:	R v Arnautovic (Unreported, County Court of Victoria, Judge Smallwood, 30 April 2009)

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CRIMINAL LAW – Sentence – Trafficking in drug of dependence – Possession of a drug of dependence – Offences committed while on parole – Parole cancelled after sentence – Almost 3 years of original sentence to be served – Totality – Re-sentenced – Reduced head sentence and non-parole period – Sentencing Act 1991, ss 5(2AA) and 16 (3B).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P F Tehan QC	Defteros Lawyers
For the Crown	Mr M Roper	Mr C Hyland, Solicitor for Public Prosecutions

WARREN CJ:

I have had the benefit of reading in draft form the reasons for judgment of Hansen JA. I agree with his Honour, for the reasons that he gives, that the application for leave to appeal should be granted, the appeal allowed, and the applicant resentenced as proposed by his Honour.

REDLICH JA:

I also agree with Hansen JA.

HANSEN JA:

The applicant pleaded guilty in the County Court to one count of possession of a drug of dependence (heroin) and not guilty to one count of trafficking in a drug of dependence (heroin). Following a trial, he was found guilty of the trafficking count. On 30 April 2009, following a plea in mitigation, the applicant was sentenced to terms of imprisonment of 10 years for trafficking (count 1) and 2 years for possession (count 2). The latter sentence was made wholly concurrent, hence the total effective sentence was 10 years. The judge fixed a non-parole period of 8 years.

The offences were committed while the applicant was on parole, under a sentence for trafficking a commercial quantity of heroin. At the date of sentence, the applicant’s parole had not been cancelled; accordingly the judge sentenced him on the basis that he could not speculate as to whether the applicant might serve additional time in the event that his parole was cancelled.[1] However, on 13 May 2009 the Adult Parole Board cancelled the applicant’s parole, with the applicant still owing a further 2 years, 11 months and 30 days under the earlier sentence.
[1]Sentencing Act 1991, s 5(2AA)(a).

In these circumstances, the Crown concedes that the sentencing discretion is reopened and that the applicant must be resentenced, having regard to the fresh evidence to the effect that he may be required to serve the whole of the period of effectively 3 years remaining under the earlier sentence.

The applicant’s written case raised further grounds of appeal. The full grounds are as follows:

1.The learned sentencing judge failed to give sufficient weight to the applicant’s plea of guilty.
2.The learned sentencing judge erred in the fixing of…

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 Arnautovic v The Queen

Details

AGLC: Arnautovic v The Queen [2012] VSCA 112
Case: [2012] VSCA 112
Decision Date: 14 June 2012

CaseChat Overview and Summary

In the case of Arnautovic v The Queen, the appellant was convicted of multiple drug-related offences committed while on parole, and subsequently had his parole revoked. The case was heard by the Supreme Court of Victoria, which was asked to review and potentially adjust the original sentence imposed. The primary legal issues before the court were whether the original sentence was unduly harsh and whether it was appropriate to reduce the sentence in light of the almost three years already served by the appellant and the subsequent cancellation of his parole.

The court considered the principles of totality in sentencing, which require that the sentence imposed should not exceed the overall punishment that the offender would have received if all the offences were considered together at the time of sentencing. The court also examined the factors that should be considered when re-sentencing an offender, including the need to ensure that the sentence is proportionate to the seriousness of the offence and the offender’s culpability. In this case, the court found that the original sentence was excessive when viewed in the context of the totality principle, and that a reduced sentence was warranted to reflect the almost three years already served and the cancellation of parole. The court took into account the provisions of the Sentencing Act 1991, particularly sections 5(2AA) and 16(3B), which address the principle of totality and the appropriate circumstances for re-sentencing.

The court ultimately decided to reduce the head sentence and the non-parole period imposed on the appellant. The decision emphasised the importance of ensuring that the total punishment reflects the overall criminality of the offender and that the sentence is not disproportionate. The court's ruling was grounded in the legislative framework and judicial precedents that support the principle of totality in sentencing. The court's final orders reduced the appellant's sentence, taking into account the almost three years already served and the cancellation of parole, thereby aligning the sentence with the principles of fairness and proportionality.

Orders