Billy Trajanovski v The Queen - [2017] VSCA 81

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0188

BILLY TRAJANOVSKI	Applicant
v
THE QUEEN	Respondent

– and –

S APCR 2016 0192

MERGIN KELMENDI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG and SANTAMARIA JJA and KIDD AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 March 2017
DATE OF JUDGMENT:	10 April 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 81	First Revision: 11 April 2017: paras [37] and [45]
JUDGMENT APPEALED FROM:	DPP v Kelmendi & Trajanovski (Unreported, County Court of Victoria, Judge Chettle, 19 August 2016)

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CRIMINAL LAW – Appeal – Sentence – Theft, handling stolen goods, aggravated burglary, other related dishonesty offences, summary offences – Co-offenders – BT sentenced to seven years and six months’ imprisonment with non-parole period of five years – MK sentenced to six years and three months’ imprisonment with non-parole period of four years – Whether sentences manifestly excessive – Whether trial judge doubly punished BT – Whether trial judge erred in relying on BT’s uncharged acts as aggravating factors when sentencing – Whether trial judge failed to have regard to parity when sentencing MK – Whether trial judge mischaracterised MK’s culpability for aggravated burglary by impugning knowledge of firearm possessed by BT – Leave to appeal concerning BT refused – Sentences within range – No double punishment – No suggestion BT was punished separately for uncharged act – Leave to appeal concerning MK granted – Presence of gun could not be used as aggravating factor for MK unless judge satisfied beyond reasonable doubt of his knowledge – Nonetheless no different sentence should be imposed – Appeal concerning MK dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Trajanovski	Mr C Sheen	Balmer & Associates
For the Applicant Kelmendi	Ms G F Connelly	Papa Hughes Layers
For the Crown	Mr B L Sonnet with Mr P J Doyle	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA
SANTAMARIA JA
KIDD AJA:

The applicant, Billy Trajanovski, pleaded guilty in the County Court at Melbourne to one charge of theft, six charges of handling stolen goods, one charge of aggravated burglary, one charge of being a prohibited person possessing a firearm, one charge of being a prohibited person possessing an imitation firearm and three charges of possessing a drug of dependence. He also pleaded guilty to three related summary offences: one charge of possessing cartridge ammunition; one charge of going equipped to steal and one charge of dealing with property suspected to be the proceeds of crime.

The applicant, Mergin Kelmendi, pleaded guilty in the County Court at Melbourne to one charge of aggravated burglary, one charge of theft and one charge of being a prohibited person possessing a firearm. He also pleaded guilty to two related summary offences: committing an indictable offence whilst on bail and failing to report on bail.

The applicants were sentenced as follows:

Trajanovski

Charge on Indictment Offence Maximum Sentence Cumulation

1 Theft [s 74(1) of the Crimes Act 1958] 10 years 1 year 6 months

2 Handle…

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 Billy Trajanovski v The Queen

Details

AGLC: Billy Trajanovski v The Queen [2017] VSCA 81
Case: [2017] VSCA 81
Decision Date: 10 April 2017

CaseChat Overview and Summary

The appellant, Billy Trajanovski, sought leave to appeal his sentence and that of his co-offender, MK, after both were convicted of a series of serious criminal offences including theft, handling stolen goods, and aggravated burglary. The trial judge sentenced BT to seven years and six months' imprisonment, with a non-parole period of five years, and MK to six years and three months' imprisonment, with a non-parole period of four years. The issues before the court were whether the sentences were manifestly excessive, whether the trial judge doubly punished BT, whether the trial judge erred in relying on BT’s uncharged acts as aggravating factors, and whether the trial judge failed to have regard to parity in sentencing MK. Additionally, the court had to consider whether the trial judge mischaracterised MK’s culpability by imputing knowledge of a firearm possessed by BT.

The court found that the sentences were within the appropriate range and that there was no double punishment of BT. The uncharged acts of BT did not separately warrant additional punishment as the trial judge did not suggest that BT was being punished for these uncharged acts. The trial judge did not err in considering BT’s uncharged acts as aggravating factors since they contributed to the overall culpability of BT. However, the court found that the trial judge should not have considered the presence of a gun as an aggravating factor for MK unless satisfied beyond reasonable doubt that MK was aware of the firearm. Despite this error, the court determined that no different sentence should be imposed on MK and dismissed the appeal concerning MK.

Ultimately, leave to appeal concerning BT was refused, while leave to appeal concerning MK was granted. However, the appeal was dismissed because the error in sentencing did not warrant a different outcome. The court held that the sentences were appropriate and did not manifest any significant judicial error.

Orders