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:

1. 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 That charge was withdrawn prior to the committal and the charge of attempted possession was substituted.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.

1. 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.

1. 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.

1. 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 unloaded the van.  The unloading was not a simple process, but it is unnecessary to go into the details in this context.  The applicant took some of the substituted substance to a nearby residential property of one of his family members and placed it into the rear of his motor vehicle which was parked in the carport.  As he was in the process of taking the rest of the substituted substance to the same place when he was arrested.  When arrested the applicant was in possession of a Blackberry mobile phone which had been used for the purpose of coordinating the movement of the imported substance.

1. Nguyen pleaded guilty to one charge of attempting to traffick a commercial quantity of a controlled drug being methylamphetamine.  Findlay, like the applicant, pleaded guilty to one charge of attempting to possess a commercial quantity of a border controlled substance, namely methylamphetamine, reasonably suspected of having been unlawfully imported.   

1. The applicant and Findlay conducted their pleas together on 12 December 2017.  They were sentenced together by the same judge on 13 March 2018.  As indicated, the applicant was sentenced to a term of imprisonment of 9 years with a non-parole period of 6 years.  Findlay was sentenced to a term of imprisonment of 7 years with a non-parole period of 4 years.

1. Nguyen was sentenced by a different judge on 12 April 2017.  He was sentenced to a term of imprisonment of 10 years, with a non-parole period of 7 years.

1. The applicant seeks leave to appeal on a single proposed ground.  It is:

The Learned Trial Judge erred in imposing a sentence which was unacceptably disparate with the sentences imposed upon co-offenders Phi Nguyen and Andrew Findlay.

1. In oral submissions the applicant focused his argument on disparity with the co-offender Nguyen, without abandoning reliance on disparity with Findlay.

1. Having read the written cases, and having heard oral submissions, I determined that there was an arguable disparity between the applicant and Nguyen.  The reasons for that conclusion are:

·Nguyen pleaded guilty to a charge of attempted trafficking.  That charge was withdrawn against the applicant and Findlay and they pleaded guilty to a charge which can be contended to be less serious in the circumstances here, being attempted possession.

·Nguyen had a relevant prior conviction, being for trafficking in heroin.

·The judge who sentenced Nguyen found that he had been recruited ‘at least four weeks prior’ to his arrest.  No such finding was made in relation to the applicant or Findlay.

·The judge who sentenced Nguyen found he acted for a ‘substantial’ reward and refused to accept that it was only $20,000.  No such findings were made against the applicant or Findlay.

·The judge who sentenced Nguyen found that he had been deceitful with the police.  No such finding was made against the applicant or Findlay.

·The judge who sentenced Nguyen was not satisfied that he was genuinely contrite or remorseful.  The sentencing judge found that the applicant and Findlay were remorseful.

·Nguyen had had ‘every opportunity’ in life according to the judge who sentenced him, but that was not the case in relation to the applicant and Findlay.

1. In relation to Findlay, the applicant contended in the written case that there was no proper basis upon which to distinguish between the two of them.

1. There are obvious difficulties in the applicant’s contention concerning Findlay.  They include the evidence as to their text messages and activities on the relevant day, the applicant’s possession of the Blackberry, and the fact that the applicant took the substituted substance into his possession.  However, if he is to have leave to appeal in relation to Nguyen, it seems to me that he ought to have the opportunity to put his contentions in relation to Findlay as well.

1. I emphasise that I express no view as to the eventual merits.

1. I accordingly granted leave to appeal.

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