Kapetanovic v The Queen - [2011] VSCA 103

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 1004

MARIO KAPETANOVIC
	Applicant
v.
THE QUEEN	Respondent

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JUDGES:	ASHLEY and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 April 2011
DATE OF JUDGMENT:	12 April 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 103
JUDGMENT APPEALED FROM:	R v Kapetanovic (Unreported, County Court Of Victoria, Judge Howard, 16 December 2009)

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CRIMINAL LAW – Application for leave to appeal against sentence – Trafficking of MDMA – Delay of more than four years between offence and sentence - Whether sentencing judge gave sufficient weight to delay - Whether sentence manifestly excessive – Weight given by sentencing judge to issue of delay insufficient of itself to vitiate sentence - Appropriate weight given by sentencing judge to guilty plea – Considering all mitigating factors the sentence of three years’ imprisonment with a non-parole period of two years falls outside range properly available - Application for leave to appeal against sentence allowed - Appeal allowed – Appellant re-sentenced to two years and three months’ imprisonment with a non-parole period of 16 months.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R F Edney	Doogue & O’Brien
For the Crown	Mr S Cooper	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

We are able to resolve this matter immediately, and I will ask my brother Weinberg to give the first judgment.

WEINBERG JA:

The applicant, Mario Kapetanovic, pleaded guilty in the County Court at Melbourne on 4 June 2009, to one count of having between 10 September and 5 October 2005 trafficked in MDMA (Ecstasy). At the same time, two other offenders, Dalibor Vasic and Darryl Briggs, pleaded guilty to trafficking and other drug offences before the sentencing judge.

The actual quantity of drugs sold by the applicant consisted of 1,500 MDMA tablets with a total weight of 375 grams. The commercial threshold for MDMA is not less than 500 grams. The applicant was sentenced on 16 December 2009 to a term of three years’ imprisonment. A non-parole of two years was fixed. He now seeks leave to appeal against that sentence.

The circumstances surrounding the applicant’s offending were as follows. The applicant was a close and trusted associate of Tomislav Samac, and a close associate of John Waters. These two were principals in a major drug dealing ring that was the subject of a large scale police investigation under the name ‘Operation Jedi’. The applicant was also acquainted with a third principal in that group, Boris Trajkovski.

The applicant was aware that Samac had access to tens of thousands of MDMA tablets. He was also aware that Samac had the capacity to press more MDMA tablets from powder.

On 12 September 2005 the applicant approached Samac and asked him if he could supply the applicant with 1,000 such MDMA tablets. Samac told the applicant that he had 30,000 such tablets available.

Despite his plea of guilty, the applicant’s position, initially at least, was that he had only ever ordered 1,500 tablets from…

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 Kapetanovic v The Queen

Details

AGLC: Kapetanovic v The Queen [2011] VSCA 103
Case: [2011] VSCA 103
Decision Date: 12 April 2011

CaseChat Overview and Summary

The appellant in this case, Kapetanovic, was convicted of trafficking in a commercial quantity of MDMA. The case was heard in the High Court of Australia, which was asked to consider an appeal against the sentence imposed by the primary court. The central issue before the court was whether the sentence imposed by the trial judge was manifestly excessive. Specifically, the court was asked to consider whether the trial judge had given sufficient weight to the delay between the commission of the offence and the imposition of the sentence, which was more than four years. The appellant also argued that the weight given to the guilty plea was insufficient.

The court found that while the delay was significant, it was not so significant that it alone could vitiate the sentence. The court also found that the trial judge had appropriately considered the guilty plea in determining the sentence. However, the court found that the sentence imposed was manifestly excessive when all mitigating factors were considered. The court noted that the appropriate weight had been given to the delay and the guilty plea, but that the sentence of three years’ imprisonment with a non-parole period of two years was still too severe. The court ultimately allowed the application for leave to appeal and re-sentenced the appellant to two years and three months’ imprisonment with a non-parole period of 16 months.

Orders