Dragan Arnautovic v The Queen
[2019] VSCA 31
•22 February 2019
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 parties agreed that, as the applicant had served 541 days of that period prior to sentencing on 13 June 2018, the balance of the parole sentence on that day was 929 days.
[2]See n 3 below.
The ‘record of orders’ for the trial indictment relevantly stated:
Pursuant to s 16(3B) Sentencing Act 1991 the Court finds exceptional circumstances and directs that 1 year of the parole sentence be served cumulatively upon the parole period currently being served by the [applicant].
Initially, the applicant sought leave to appeal against his sentence on four grounds. First, that the judge erred by ordering that the non-parole period be served partially cumulatively upon the parole sentence. Secondly, that the judge erring in her application of the totality principle by failing to take into account the parole sentence. Thirdly, that the judge erred in her application of the totality principle in making the order for cumulation on charge 2 on the trial indictment. Fourthly, that the judge failed to take into account two days during which the applicant was in custody, before his parole was cancelled, as pre-sentence detention.
During the hearing of the application for leave to appeal on 30 January 2019, the Court requested that the Crown ascertain how Corrections Victoria had interpreted the judge’s direction in the record of orders that ‘1 year of the parole sentence be served cumulatively upon the parole period currently being served by the [applicant]’. On 11 February 2019, the Crown advised the Court as follows:
Corrections Victoria’s interpretation is that as [the applicant] had already done 541 days of the reclaimed parole, at the date of the sentence being 13 June 2018, 365 of those days represented a cumulation contemplated by the orders imposed on 13 June 2018. In other words, no further cumulation from 13 June 2018 was required.
As [the applicant] had no pre-sentence detention for the matters for which he was sentenced on 13 June 2018 he is therefore eligible for parole 8 years from the date of that sentence — namely 12 June 2026. His sentence will expire 10 years from 13 June 2018 — namely 12 June 2028.
The Crown confirmed that it accepted Corrections Victoria’s interpretation of the judge’s direction even though an alternative interpretation that was less favourable to the applicant was available. Following this confirmation, the applicant sought leave to abandon grounds 1 and 2.
We accept that Corrections Victoria’s interpretation of the judge’s direction is open. As that interpretation renders grounds 1 and 2 otiose, leave is granted to the applicant to abandon those grounds. In deciding to grant leave, the Court has proceeded on the basis that Corrections Victoria will not alter its interpretation of the judge’s direction in a manner that is adverse to the applicant.
The Crown has properly conceded that ground 4 is made out. It submitted that the error relating to the pre-sentence detention of two days may be corrected by the Court under s 280(3)(b) of the Criminal Procedure Act 2009 (‘CPA’) without the necessity of granting leave to appeal.
As a result of the applicant’s abandonment of grounds 1 and 2 and the Crown’s concession that ground 4 is made out, the only ground remaining in contention is ground 3.
For the reasons that follow, the application for leave to appeal will be refused.
Circumstances of the offending
On 9 November 2016, the applicant met with two men in Laverton and sold 7 grams of heroin of 33 per cent purity to one of them for $2,800 (plea indictment charge 1 — trafficking in a drug of dependence). One of the men was a police covert operative. The covert operative was also given 0.3 grams of methylamphetamine of 80 per cent purity by the applicant (plea indictment charge 2 — possession of a drug of dependence).
On 5 December 2016, the applicant met with a woman in Laverton and sold 7 grams of heroin of 31 per cent purity to her for $2,800 (plea indictment charge 3 — trafficking in a drug of dependence). The woman was a police covert operative.
The applicant met with the same female covert operative on 13 December 2016 in Williamstown. He sold 7 grams of heroin of 29 per cent purity to her for $2,800 (plea indictment charge 4 — trafficking in a drug of dependence).
At 7:04 am on 17 December 2016, the applicant was observed by police to place something under the bonnet of his Toyota vehicle. At 9:08 am, he was arrested at a motel in Corio. In the vehicle police found:
(a) a wallet containing $550 cash;
(b)five plastic bags containing a total of 33.8 grams of heroin ranging in purity between 13 and 80 per cent (plea indictment charge 5 — trafficking in a drug of dependence); and
(c)one plastic bag containing 3.5 grams of methylamphetamine of 84 per cent purity (plea indictment charge 6 — possession of a drug of dependence).
The heroin and methylamphetamine were located in a magnetic container under the bonnet in the engine bay.
Also on 17 December 2016, police executed a search warrant at the applicant’s home in Melton West, and at his mother’s home in St Albans. In his home, they located a small amount of heroin (plea indictment charge 7 — possession of a drug of dependence), a small amount of methylamphetamine (plea indictment charge 8 — possession of a drug of dependence) and $6,000 cash. That sum, together with the sum of $550 referred to at [14] above were together the subject of summary charge 20 — Dealing with property suspected to be the proceeds of crime.
At the applicant’s mother’s property, underneath the house, police located 635.7 grams of heroin ranging in purity between 12 and 37 per cent (trial indictment charge 1 — trafficking in a commercial quantity of a drug of dependence) and 74.7 grams of methylamphetamine ranging in purity between 84 and 86 per cent (trial indictment charge 2 — trafficking in a drug of dependence).
In total, the quantities and street values of the drugs located by police in the applicant’s vehicle and under his mother’s house were as follows:
(a)669.5 grams of heroin, with a street value of $263,017.86 if sold in ounces, $267,800 if sold in grams and $334,750 if sold in points; and
(b)78.2 grams of methylamphetamine, with a street value of $31,280 if sold in grams or $39,100 if sold in points.
During his record of interview, the applicant admitted possession of the heroin and methylamphetamine located at his home and in the container under the bonnet of his vehicle.
Personal circumstances
The applicant was 54 years old at the time of the offending and 56 when he was sentenced. He was born in Croatia. His father died when he was very young and his mother re-partnered when he was an infant. He migrated to Australia with his mother and stepfather when he was 9 years of age. His stepfather, with whom he did not have a positive relationship, died in 1992. The applicant’s mother is approximately 77 years old. The applicant has one older sister with whom he has limited contact.
The applicant completed Year 9 at school and left home at the age of 18. He worked at an abattoir for five years followed by a shipping container company in Port Melbourne for one year and Kraft for 18 months. After serving a period of imprisonment, he returned to work at the abattoir for an additional two years before commencing unlicensed security work and working as a bodyguard. He has also previously owned a supermarket and a brothel. In 2015, he completed a course in personal training and in 2016, approximately two months prior to the current offending, he started a boxing gym in Melton.
The applicant has had a number of relationships from which he had three children: a son who died in July 2016 at the age of 34 from cardiac issues; a daughter, now aged approximately 34; and a son now aged 30. The applicant was shocked by the death of his eldest son, as he had not realised that he was ill. He was also affected in mid-2016 by the suicide of a former girlfriend, who had supported him while he served a previous period in custody.
The applicant reported to a psychologist, Ms Gina Cidoni, that he had no history of major alcohol abuse and had never been addicted to an illicit substance. He told her that he used cocaine from the age of 22 until he was 24, has smoked heroin three or four times, and used methamphetamine a few times. He has tried cannabis but does not use it.
In her report dated 26 September 2017, Ms Cidoni assessed the applicant as having intellectual functioning in the low average range, and a suspected brain injury arising from his history of professional boxing and street fighting. She stated that his symptoms of, among others, low mood, low self-worth, sleep problems and difficulties with concentrating and making decisions supported a diagnosis of persistent depressive disorder. She also stated that he has significant anti-social personal traits, and is ‘chronically institutionalised’ as a result of his long history of imprisonment and chronic reoffending.
The applicant has a history of offending beginning in 1980, when he was dealt with for, among other things, burglary, assault with a weapon, and carrying a weapon while under the age of 18. He has received numerous fines for unlawful possession and use of methylamphetamine and heroin. He was first sentenced to a period of imprisonment in 1981, for behaving in an offensive manner in a public place, for which he was sentenced to 7 days’ imprisonment.
On 30 November 1990, the applicant was dealt with in the County Court for two charges of trafficking in heroin and one charge of possession of heroin. He was sentenced to a total effective sentence of 9 years’ imprisonment with a non-parole period of 7 years. Those charges involved a 3-week period of offending in May 1989 and 6-week period in December 1989–January 1990, during which he conducted a continuous business of trafficking approximately $68,000 worth of heroin.
On 17 March 1997, the applicant was dealt with in the Melbourne Magistrates’ Court for one charge of trafficking in a drug of dependence, and sentenced to 85 days’ imprisonment.
The applicant was dealt with in the County Court for one charge of trafficking in heroin on 13 October 1999, and was sentenced to 12 years’ imprisonment with a non-parole period of 9 years, and ordered to pay a pecuniary penalty of $15,000. That offending related to trafficking heroin worth almost $1 million.
On 30 April 2009, the applicant was dealt with in the County Court for one charge each of trafficking and possessing heroin. He was sentenced to a total effective sentence of 10 years’ imprisonment with a non-parole period of 8 years. He successfully appealed against that sentence to this Court, and was resentenced to 8 years and 6 months’ imprisonment with a non-parole period of 6 years.[3] The applicant was on parole pursuant to that sentence at the time of the current offending.
[3]See Arnautovic v The Queen [2012] VSCA 112.
The combined effect of the applicant’s various sentences is that he has spent approximately 24 years in custody between 1990 and his imprisonment for the current offending.
During his periods of incarceration, the applicant has actively assisted other prisoners by mentoring them, providing physical training for them, being a positive influence on others and holding a position of responsibility. He has been involved in a school outreach program, participated in a drug program and furthered his own education.
Sentencing remarks
The judge accepted that the applicant’s offending ‘was not at the highest level of trafficking in a commercial quantity’.[4] However, she stated that the offending was aggravated by the fact that the applicant was on parole for similar offending during the commission of the offences. The judge also noted that, unlike the applicant’s prior history of trafficking, the current offending related to individual transactions rather than trafficking on a Giretti[5] basis, that is, as a continuous activity.
[4]Sentencing remarks [28].
[5]Giretti v The Queen (1986) 24 A Crim R 112.
The judge stated that, in the light of the applicant’s three prior substantial terms of imprisonment for similar offending, specific deterrence, general deterrence, denunciation and protection of the community were all important sentencing considerations. As a consequence of the applicant’s age, the judge found that he would have a limited capacity to reintegrate into society when he is ultimately released and that because of his criminal history and level of institutionalisation, his prospects of rehabilitation were poor.
The judge had regard to the applicant’s plea of guilty to the offences on the plea indictment, and stated that he would receive the benefit of those pleas and his cooperation with authorities, which shortened the length and complexity of the trial. However, she stated that there could be no such benefit afforded to the applicant for the most serious charge, namely, trafficking a commercial quantity of heroin, because he had pleaded not guilty to that charge.
The judge also had regard to the fact that the applicant had been able to comply with the conditions of his parole for a period between 2014 and 2016, engaged with community work and started his business before distressing events in his life caused him to relapse into offending in November 2016.
Regarding totality, after referring to the parole sentence the judge stated ‘Clearly, questions of totality are relevant to the sentencing task before me’.[6]
[6]Sentencing remarks [22].
Ground 3: Totality principle
Ground 3 is in the following terms:
The learned sentencing judge erred in the application of the totality principle in making the order for cumulation relating to charge 2 on the trial indictment.
The applicant submitted that the judge erred in her application of the totality principle in ordering cumulation of 2 years for charge 2 on the trial indictment. He contended that the circumstances of the offending the subject of charges 1 and 2 on that indictment did not justify the magnitude of that order. He argued that, apart from the charges relating to two different illicit substances, there was little to distinguish the offending the subject of those charges. This was said to be so because the methylamphetamine and heroin were located simultaneously, in the same location under the applicant’s mother’s house, and with some packages of drugs stored together in the same container. The applicant argued that, having regard to these circumstances and the ‘considerable sentence imposed on charge 1’, the level of cumulation for charge 2 resulted in a total sentence for charges 1 and 2 that was not a just and appropriate measure of the total criminality involved.
The Crown submitted that the judge did not err in her application of the totality principle when imposing the sentences for charges 1 and 2 on the trial indictment, and that the order for cumulation for charge 2 was appropriate. It contended that some degree of cumulation was warranted in the light of the following: two different illicit substances were involved; charge 1 involved a commercial quantity whereas charge 2 involved trafficking simpliciter; the applicant intended to sell both of the substances, which were both valuable, and the two charges involved separate criminality.
The Crown accepted that the order for cumulation — which amounted to two thirds of the sentence on charge 2 — was stern, but submitted that it was nevertheless appropriate due to the applicant’s relevant prior convictions and the fact that he was sentenced as a serious drug offender.
In our opinion, ground 3 is not made out.
The applicant does not complain about the sentence of 3 years’ imprisonment imposed for charge 2 on the trial indictment. That is not surprising. The sentence was moderate having regard to the serious nature of the applicant’s trafficking of 74.7 grams of methylamphetamine, the maximum penalty of 15 years’ imprisonment applicable to that charge, his plea of not guilty and his prior offences. In circumstances where the offending relating to charge 2 was separate from the offending relating to charge 1 (trafficking 635.7 grams of heroin), a not insignificant period of cumulation was warranted.
We reject the applicant’s submission that the fact that the methylamphetamine was stored in the same location as the heroin diminishes the seriousness of the offending the subject of charge 2. This is not a case where two offences can, in substance, be treated as a single offence because they are part of the same transaction and substantially overlap. The two offences involved different drugs with their own distinct characteristics, quantity and value.[7] They would have caused their own separate harm to those who would have used them.
[7]The applicant was sentenced as a serious drug offender in relation to charge 1 on the trial indictment.
In all of the circumstances, the order for cumulation of 2 years for charge 2 on the trial indictment did not infringe the totality principle.
Conclusion
In the light of our rejection of ground 3, the application for leave to appeal against sentence will be refused.
The refusal of leave to appeal does not preclude the Court from correcting the judge’s inadvertent failure to make a declaration under s 18(4) of the Sentencing Act 1991 that the period of two days during which the applicant was remanded in custody after his arrest, and before cancellation of his parole, is to be reckoned as already served under the sentence imposed by the judge. We agree with the Crown’s submission that this error can be corrected pursuant to s 280(3)(b) of the CPA notwithstanding the refusal of leave to appeal. Section 280 relevantly provides as follows:
280 Determination of application for leave to appeal under section 278
(1)The Court of Appeal may refuse an application for leave to appeal under section 278 in relation to any ground of appeal if—
(a)there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed; or
(b)there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence despite there being an error in the sentence first imposed.
Note
Subsection (3) empowers the Court of Appeal to correct a sentence if an application is refused in the circumstances referred to in subsection (1)(b).
(2)An application may be refused under subsection (1) even if the Court of Appeal considers that there may be a reasonably arguable ground of appeal.
(3)On refusing an application by reason of subsection (1)(b), the Court of Appeal may, if it considers it appropriate to do so—
(a)amend the sentence first imposed by substituting a less severe sentence; and
(b)make any other order that the Court of Appeal considers ought to be made.
We will make a declaration under s 280(3)(b) of the CPA and s 18(4) of the Sentencing Act that the period of two days is to be reckoned as already served under the sentence imposed by the County Court on 13 June 2018.
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