Dragan Arnautovic v The Queen - [2019] VSCA 31

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0131

DRAGAN ARNAUTOVIC	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KYROU JA and TAYLOR AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 January 2019
DATE OF JUDGMENT:	22 February 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 31
JUDGMENT APPEALED FROM:	DPP v Arnautovic [2018] VCC 863 (Judge Quin)

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CRIMINAL LAW – Appeal – Sentence – Whether judge erred in application of totality principle – Application for leave to appeal against sentence refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Connolly	Patrick W Dwyer
For the Respondent	Mr J Gullaci	Mr J Cain, Solicitor for Public Prosecutions

KYROU JA
TAYLOR AJA:

Introduction and summary

On 8 May 2018, the applicant pleaded guilty to the charges on Indictment G13450601.1A (‘plea indictment’) set out in the table below. On 22 May 2018, he was convicted by jury verdict of the charges on Indictment G13450601.1B (‘trial indictment’), also set out in that table. On 13 June 2018, he was sentenced as follows:[1]
[1]DPP v Arnautovic [2018] VCC 863 (‘Sentencing remarks’).

Plea indictment

Charge Offence Maximum Sentence Cumulation

1 Trafficking in a drug of dependence (heroin) [Drugs, Poisons and Controlled Substances Act 1981 (‘DPCSA’) s 71AC] 15 years 1 year -

2 Possession of a drug of dependence (methylamphetamine) DPCSA s 73(1)(c)] 5 years 6 months -

3 Trafficking in a drug of dependence (heroin) 15 years 1 year -

4 Trafficking in a drug of dependence (heroin) 15 years 1 year -

5 Trafficking in a drug of dependence (heroin) 15 years 2 years 1 year

6 Possession of a drug of dependence (methylamphetamine) [DPCSA s 73(1)(a)] 5 years 6 months -

7 Possession a drug of dependence (heroin) [DPCSA s 73(1)(b)] 1 year 1 month -

8 Possession of a drug of dependence (methylamphetamine) [DPCSA s 73(1)(b)] 1 year 1 month -

Summary charge

20 Dealing with property suspected to be the proceeds of crime [Crimes Act 1958 s 195) 2 years 1 month -

Trial indictment

Charge Offence Maximum Sentence Cumulation

1
Trafficking in a commercial quantity of a drug of dependence (heroin)

DPCSA s 71AA]

25 years
7 years Base

2 Trafficking in a drug of dependence (methylamphetamine) 15 years 3 years 2 years

Total Effective Sentence: 10 years

Non-Parole Period: 8 years

Section 6AAA statement on plea indictment: 4 years

Pre-Sentence Detention Declaration: None

Other relevant matters: Pecuniary penalty of $1,850

The offending took place between 9 November 2016 and 17 December 2016. During that period, pursuant to a sentence imposed by this Court on 14 June 2012,[2] the applicant was on parole. He was arrested on 17 December 2016 for the current offending and remanded in custody. On 19 December 2016, his parole was cancelled and from that time he was held in custody to serve the balance of the parole component of the sentence imposed on 14 June 2012 (‘parole sentence’). As at 19 December 2016, the parole sentence comprised 1,470 days. The…

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 Dragan Arnautovic v The Queen

Details

AGLC: Dragan Arnautovic v The Queen [2019] VSCA 31
Case: [2019] VSCA 31
Decision Date: 22 February 2019

CaseChat Overview and Summary

Dragan Arnautovic appealed against the sentence imposed on him following his conviction for various criminal offences. The Court of Appeal was tasked with determining whether the trial judge erred in the application of the totality principle when sentencing Arnautovic. The appeal focused on the quantum of the sentence and the manner in which the trial judge had considered the cumulative effect of multiple sentences.

The primary legal issue was whether the trial judge had properly applied the totality principle, which requires consideration of the overall punishment when multiple sentences are to be served concurrently. Arnautovic argued that the trial judge had failed to adequately consider the principle, resulting in an excessive sentence. The appeal also considered whether the sentence was manifestly excessive, and whether the trial judge had erred in failing to impose a non-parole period that reflected the principle.

The Court of Appeal held that the trial judge had correctly applied the totality principle. The court found that the sentence imposed was not manifestly excessive and that the trial judge had appropriately considered the cumulative effect of the sentences. The court emphasised that the trial judge had balanced the need for punishment and deterrence against the need for rehabilitation. Consequently, the Court of Appeal dismissed Arnautovic's appeal against sentence and refused the application for leave to appeal.

Orders