Dukic v The Queen - [2021] VSCA 18

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0205

SASA DUKIC	Applicant
v
THE QUEEN	Respondent

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JUDGES:	FERGUSON CJ and BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 February 2021
DATE OF JUDGMENT:	11 February 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 18
JUDGMENT APPEALED FROM:	DPP v Dukic (Unreported, County Court of Victoria, Judge Meredith, 29 August 2019)

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CRIMINAL LAW – Appeal – Sentence – Trafficking in large commercial quantity of drug of dependence –Applicant sentenced to 11 years’ imprisonment – Sentencing judge purported to sentence applicant as serious drug offender under pt 2A of Sentencing Act 1991 – Error corrected before sentence recorded in court records – Sentencing judge withdrew comments about pt 2A of Sentencing Act 1991 – Length of sentence unchanged – Whether sentenced on basis that community protection was principal purpose for sentence – Whether sentencing judge erred in failing to re–sentence applicant to lesser term of imprisonment – Applicant not sentenced on basis that community protection principal sentencing purpose – No vitiating error –– Leave to appeal refused – Sentencing Act 1991 pt 2A – Director of Public Prosecutions (Cth) v Guest [2014] VSCA 29, R v Beary (2004) 11 VR 151, Gillespie (a pseudonym) v The Queen [2018] VSCA 151 applied.

CRIMINAL LAW – Appeal – Sentence – Multiple offences – Whether sentence of 11 years’ imprisonment for trafficking in large commercial quantity of drug of dependence manifestly excessive – Whether total effective sentence of 11 years and 10 months’ imprisonment manifestly excessive – Standard sentence – Sentences not beyond the available range – Sentencing judge considered all relevant matters – No error disclosed – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood with Ms C Dwyer	Emma Turnbull Lawyers
For the Respondent	Ms D Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

FERGUSON CJ
BEACH JA:

The applicant pleaded guilty to a number of drug and firearm offences, and was sentenced as follows on 29 August 2019:

Charge on Indictment

Offence

Maximum

Sentence

Cumulation

1

Trafficking Methylamphetamine (Large Commercial Quantity)

Life imprisonment

11 years

Base

2

Prohibited person in possession of firearm

10 years’ imprisonment

18 months

6 months

3

Storing cartridge ammunition in an insecure manner whilst unlicensed

4 years’ imprisonment

3 months

—

4

Possession of a drug of dependence

5 years’ imprisonment

1 month

—

5

Knowingly deal with proceeds of crime

20 years’ imprisonment

12 months

4 months

Summary Offence 13

Possess prohibited weapon without approval

2 years’ imprisonment

6 months

—

Summary Offence 14

Store unauthorised explosives without approval

100 penalty units

Conviction and fine of $250

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Total Effective Sentence:

11 years and 10 months’ imprisonment

Non-Parole Period:

8 years

Pre-sentence Detention Declared:

253 days

Section 6AAA statement

15 years’ imprisonment, with a non-parole period of 11 years

Other orders: Forfeiture orders.

Grounds of Appeal

The applicant seeks leave to appeal against his sentence on the following grounds:

1The learned sentencing…

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 Dukic v The Queen

Details

AGLC: Sasa Dukic v The Queen [2021] VSCA 18
Case: [2021] VSCA 18
Decision Date: 11 February 2021

CaseChat Overview and Summary

Dukic v The Queen involves an appeal against the sentence imposed on the applicant for trafficking in a large commercial quantity of a drug of dependence. The case was heard in the Victorian Court of Appeal. The applicant, Dukic, was sentenced to 11 years' imprisonment. The sentencing judge initially considered the application under Part 2A of the Sentencing Act 1991, which pertains to serious drug offenders, but subsequently withdrew these comments before the sentence was recorded. Despite this, the length of the sentence remained unchanged.

The primary legal issues addressed by the court were whether the applicant was sentenced with community protection as the principal purpose, and whether the sentencing judge erred in not re-sentencing the applicant to a lesser term. The court found that the applicant was not sentenced on the basis that community protection was the principal sentencing purpose. Furthermore, the court concluded that there was no vitiating error in the proceedings. The court applied principles from Director of Public Prosecutions (Cth) v Guest, R v Beary, and Gillespie (a pseudonym) v The Queen in reaching its decision.

The Court of Appeal held that the sentence of 11 years' imprisonment for trafficking in a large commercial quantity of a drug of dependence was not manifestly excessive, nor was the total effective sentence of 11 years and 10 months. The court noted that the sentencing judge had considered all relevant matters and found no error in the proceedings. Consequently, the appeal against sentence was dismissed, and leave to appeal was refused. The court determined that the sentence was within the appropriate range and appropriately reflected the gravity of the offence.

Orders