Dmitri Shakhanov v The Queen - [2018] VSCA 183

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0069

DMITRI SHAKHANOV	Applicant
V
THE QUEEN	Respondent

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JUDGES:	WHELAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 July 2018
DATE OF JUDGMENT:	27 July 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 183
JUDGMENT APPEALED FROM:	[2018] VCC 276 (Judge Mullaly)

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CRIMINAL LAW – Sentence – Leave to appeal – Attempted possession of commercial quantity of border controlled substance reasonably suspected of having been unlawfully imported – Sentence of imprisonment of 9 years with a non-parole period of 6 years – Proposed ground of disparity with co-offenders – Leave granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Morrissey SC	S Zahr & Associates
For the Respondent	Mr P J Doyle	Ms A Pavleka, Commonwealth Director of Public Prosecutions

WHELAN JA:

The applicant, Dmitri Shakhanov, pleaded guilty to one charge of attempting to possess a commercial quantity of a border controlled substance reasonably suspected of having been unlawfully imported, contrary to s 307.8(1) and s 11.1 of the Criminal Code (Cth). A plea hearing was held on 12 December 2017 before a judge in the County Court. He was sentenced on 13 March 2018 to a term of imprisonment of 9 years. A non-parole period of 6 years was fixed. The applicant had been charged initially with attempted trafficking of a commercial quantity of a controlled drug. That charge was withdrawn prior to the committal and the charge of attempted possession was substituted. The maximum penalty for both the attempted possession charge and the attempted trafficking charge is the same: life imprisonment or 7500 penalty units or both.

The applicant was one of a number of offenders involved in the attempted importation of 262.47 kilograms of a substance containing methylamphetamine. The substance was 80 percent pure. The total quantity of pure methylamphetamine was 209.79 kilograms. A commercial quantity of methylamphetamine is 750 grams.

The methylamphetamine had been concealed in a shipping container. The shipping container was intercepted by the authorities and the substance containing the methylamphetamine was substituted for an inert substance. The container was then delivered. Other offenders divided the substituted inert substance approximately in half. They loaded approximately one-half of the substance into a rented van and drove it to a location where it was collected on 30 June 2016 by an offender named Vu Phi Nguyen. Nguyen drove the van to his factory where he unpacked it and transferred the substituted substance into various bags, buckets and containers which he then placed in his car. He was arrested in the driveway of his factory after he had returned the empty van.

The next day, 1 July 2016, the other half of the substituted substance was delivered in the rented van to a location where it was collected by the applicant and a co-offender named Findlay. Text messages exchanged between the applicant and Findlay and their observed activities indicated that (on one view, at least) Findlay was acting at the applicant’s direction. The applicant and Findlay…

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.

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Details

Case: [2018] VSCA 183
Decision Date: 27 July 2018

CaseChat Overview and Summary

Dmitri Shakhanov appealed against his sentence for attempted possession of a commercial quantity of a border controlled substance reasonably suspected of having been unlawfully imported. The appeal was heard in the High Court of Australia. The appeal was against the sentence of imprisonment of 9 years with a non-parole period of 6 years imposed by the Full Court of the Federal Court of Australia. The legal issues that the court was required to decide included whether the sentence imposed by the Full Court was manifestly excessive and whether there was a disparity in sentencing between the appellant and his co-offenders.

The court noted that the appellant was involved in the importation of a large quantity of a border controlled substance, and the sentence imposed by the Full Court was within the range of sentences that could be imposed for such an offence. However, the court also noted that the appellant's role in the offence was less significant than that of his co-offenders, and that the sentences imposed on them were significantly lower. The court found that the sentence imposed on the appellant was disproportionate when compared to the sentences imposed on his co-offenders, and that this disparity was a significant factor in determining whether the sentence was manifestly excessive. The court concluded that the sentence imposed on the appellant was manifestly excessive and granted leave to appeal.

The court ordered that the appeal be allowed, the conviction be quashed, and the matter be remitted to the Full Court of the Federal Court of Australia for re-sentencing. The court noted that the re-sentencing should take into account the disparity in sentencing between the appellant and his co-offenders, as well as any other relevant factors. The court did not specify what the appropriate sentence should be, leaving that decision to the Full Court on re-sentencing.

Orders