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…
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- AGLC
- Kapetanovic v The Queen [2011] VSCA 103
- Case
- [2011] VSCA 103
- Decision Date
CaseChat Overview and Summary
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.
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