DPP (Cth) v Vestic - [2008] VSCA 12

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 225 of 2007

DIRECTOR OF PUBLIC PROSECUTIONS FOR THE COMMONWEALTH
	v
JON VESTIC

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JUDGES:	VINCENT and NEAVE JJA and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 February 2008
DATE OF JUDGMENT:	7 February 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 12

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Criminal law – Appeal by Commonwealth Director of Public Prosecutions – Importation of a border-controlled precursor, namely, pseudoephedrine - Sub-s 307.12(1) of the Criminal Code (Cth) – Sentence of twelve months’ imprisonment to be released after six months – Whether sentence was manifestly inadequate - Co-accused being the principal offender received a very lenient sentence due to having a terminal illness – Principle of double jeopardy - Imposition of an immediate custodial term on a respondent who has already been released from prison – Sentence found to be manifestly inadequate but appropriate for the court to exercise discretion against re-sentencing the respondent.

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth DPP	Mr D D Gurvich	Commonwealth Director of Public Prosecutions
For the Respondent	Ms A C Fox	George Henderson & Associates

VINCENT JA:

I invite Coghlan AJA to deliver the first judgment.

COGHLAN AJA:

On 10 July 2007, the respondent pleaded guilty in the County Court at Melbourne to one count of importing a substance intending to use or believing that another intended to use, any of the substance to manufacture a controlled drug; the substance being a border-controlled precursor, namely, pseudoephedrine, and the quantity imported being a marketable quantity (contrary to sub-s 307.12(1) of the Criminal Code (Cth)).

He was said to have committed that offence by aiding and abetting the commission of the offence by his co-accused, John Anthony Giannarelli.

He admitted one prior conviction, which for present purposes is of no consequence.

The offence related to the importation by courier of 16,923 tablets containing pseudoephedrine.

The maximum penalties for the offence are imprisonment for 15 years and a fine of $330,000 or both.

On the same day, his co-accused, John Anthony Giannarelli, the principal, pleaded guilty to the importation of a total of 34,310 tablets. The difference in the amounts between the two accused was that Giannarelli took responsibility for the importation of six packages, while the involvement of the respondent related to only three. Giannarelli's offence became the more serious one of importation of a commercial quantity of a border-controlled precursor. The maximum penalties were 25 years and a fine of $550,000 or both.

The respondent was sentenced to be imprisoned for 12 months, to be released after serving six months of the sentence upon entering into a recognisance in the amount of $5,000 with a condition that he be of good behaviour for a period of six months. Ten days was reckoned as being already served. He was released pursuant to that order on 30 December 2007.

The co-accused Giannarelli was sentenced to three years' imprisonment, but released on entering into a recognisance in the sum of $5,000 to be of good behaviour…

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 DPP (Cth) v Vestic

Details

AGLC: DPP (Cth) v Vestic [2008] VSCA 12
Case: [2008] VSCA 12
Decision Date: 7 February 2008

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions (Commonwealth) versus Vestic, the Federal Court was tasked with addressing an appeal against a sentence imposed on the respondent for the importation of a border-controlled precursor, specifically pseudoephedrine, in violation of section 307.12(1) of the Criminal Code. The respondent was sentenced to twelve months' imprisonment, to be released after serving six months. The Commonwealth Director of Public Prosecutions contended that the sentence was manifestly inadequate.

The court had to determine whether the sentence imposed was manifestly inadequate, especially in light of the principle of double jeopardy and the fact that the co-accused, who was considered the principal offender, received a significantly more lenient sentence due to a terminal illness. The court also had to consider the appropriateness of imposing an immediate custodial term on the respondent who had already been released from prison.

Upon examining the circumstances and the sentencing principles, the court found that while the sentence was indeed manifestly inadequate, it was appropriate for the court to exercise its discretion against re-sentencing the respondent. The court balanced the need for a sentence that reflects the seriousness of the offence against the principle of double jeopardy and the respondent's already served time in prison.

The court ultimately upheld the sentence, emphasising the discretion available to the court in such cases, particularly when considering the broader sentencing context and the respondent's prior imprisonment.

Orders