CRIMINAL LAW – Sentence – Federal offences – One charge of possessing a marketable quantity of an unlawfully imported border controlled drug and one charge of trafficking in a controlled drug – Guilty plea – Sentence of 3 years and 6 months on first charge and 1 year and 6 months with 6 months cumulation on second charge – Crown concession of vitiating error based on sentencing judge’s misstatement of pure quantity of the drug the subject of first charge – Whether a different sentence should be imposed – Whether a Community Correction Order (CCO) combined with time served appropriate sentencing disposition – Appeal dismissed.
CRIMINAL LAW – Sentence – Federal offences – Judiciary Act 1903 (Cth) s 68(1)(c) – Principles for determining applicability of state sentencing laws to federal offences – CCO cannot be combined with a term of imprisonment for a single federal offence – Crimes Act 1914 (Cth) pt 1B leaves no room for operation of Sentencing Act 1991 ss 5(4C), 44 – Whether a combination sentence constitutes double punishment – Meaning of ‘sentence’ – Desirability of national consistency in sentencing of federal offenders – Hili (2010) 242 CLR 520 applied.
CRIMINAL LAW – Sentence – Guideline judgment in Boulton [2014] VSCA 342 not applicable to sentencing for a federal offence – Judiciary Act 1903 (Cth) s 80 – Inconsistency between guideline judgment and Crimes Act 1914 (Cth) pt 1B – Bui(2012) 244 CLR 638 applied.
CRIMINAL LAW – Sentence – Observations on CCOs as a sentencing option – Boulton [2014] VSCA 342 considered.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr D D Gurvich
Victor C Andreou
For the Respondent
Ms W Abraham QC with Ms K Breckweg
Office of the Commonwealth Director of Public Prosecutions
WEINBERG JA
KYROU JA KAYE JA:
Introduction and summary
On 3 June 2014 the appellant (now aged 51) pleaded guilty to possessing a marketable quantity of cocaine and to trafficking cocaine. Following a plea on that day he was sentenced on 26 June 2014 as follows:
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
1
Possess a marketable quantity of an unlawfully imported border controlled drug [cocaine] [s 307.6(1) Criminal Code (Cth)]. [1]
25 years’ imprisonment and / or 5,000
penalty units.
3 years 6 months
Base
2
Trafficking in a controlled drug [cocaine] [s 302.4(1) Criminal
Code (Cth)].
10 years’ imprisonment and / or 2,000
penalty units.
1 year 6 months
Sentence to commence 12 months before the expiry of the sentence on charge 1
[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.
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AGLC
Atanackovic v The Queen [2015] VSCA 136
Case
[2015] VSCA 136
Decision Date
CaseChat Overview and Summary
In the High Court of Australia, the case of Atanackovic v The Queen dealt with an appeal against sentencing for federal drug-related offences. The appellant, Atanackovic, was convicted of possessing a marketable quantity of an unlawfully imported border controlled drug and of trafficking in a controlled drug. He entered a guilty plea and was sentenced to 3 years and 6 months for the first charge and 1 year and 6 months with 6 months cumulation on the second charge. The appeal hinged on the Crown’s concession of a vitiating error based on the sentencing judge’s misstatement of the pure quantity of the drug involved in the first charge. The primary legal issues were whether a different sentence should be imposed and whether a Community Correction Order (CCO) combined with time served was an appropriate sentencing disposition.
The court considered whether the combination of a CCO with a term of imprisonment for a single federal offence constituted double punishment. It was noted that the Judiciary Act 1903 (Cth) s 68(1)(c) and the principles for determining the applicability of state sentencing laws to federal offences suggested that the Crimes Act 1914 (Cth) pt 1B did not leave room for the operation of Sentencing Act 1991 ss 5(4C), 44. The court also examined the meaning of ‘sentence’ and the desirability of national consistency in sentencing of federal offenders, applying the principles from Hili (2010) 242 CLR 520. Additionally, the court assessed the applicability of the guideline judgment in Boulton [2014] VSCA 342 to the sentencing for a federal offence, finding an inconsistency between the guideline judgment and the Crimes Act 1914 (Cth) pt 1B, and applied the decision in Bui (2012) 244 CLR 638.
The court dismissed the appeal, holding that the combination of a CCO with a term of imprisonment for a single federal offence constituted double punishment and that such a combination was not permissible under the relevant statutory framework. Consequently, the court rejected the argument that a CCO combined with time served was an appropriate sentencing disposition. The court also found that the guideline judgment in Boulton [2014] VSCA 342 did not apply to the sentencing of federal offences due to the inconsistency with the Crimes Act 1914 (Cth) pt 1B. The appeal was dismissed, and the original sentences were upheld.