Kapetanovic v The Queen
[2011] VSCA 103
•12 April 2011
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 Samac for the purposes of sale, but had never actually received them. The sentencing judge expressed scepticism as regards that contention, and inquired whether the applicant would be giving evidence in support of his claim. Significantly, the applicant declined to do so.
From that point on, the applicant’s position changed. It was conceded, on his behalf, that he had indeed received the 1,500 tablets that were the subject of the count, and implicitly at least, conceded that he had sold them. The sentencing judge viewed the applicant’s approach to this matter on the plea as indicating a lack of genuine remorse.
In any event, the evidence was that the applicant first acquired 1,000 tablets from Samac on or about 12 September 2005. The sentencing judge found that he subsequently sold these tablets to various unidentified parties. The applicant then acquired a further 500 tablets from Samac at some point between 20 and 21 September 2005. He again then sold those tablets to unidentified third parties.
Evidence was led on the plea to the effect that if those 1,500 tablets were sold at street level, the proceeds of sale would be somewhere between $37,500 and $75,000. If sold in lots of 100 tablets, the proceeds would be of the order of $30,000 to $45,000.
His Honour described the applicant as having engaged in ‘wholesale trafficking at a high level of the trafficking simpliciter category’.
When first questioned by the police, the applicant denied any involvement with drugs of dependence. However, it transpired that he had been seen by police to be visiting Samac at Samac’s home, in the early hours of 6 October 2005. That was shortly before Samac was intercepted by police in his car and found to be in possession of more than 15,000 MDMA tablets. A further 12,000 such tablets were located by police at Samac’s home which was searched almost immediately thereafter. As a result of the applicant having been seen in attendance at Samac’s home, and as a result of various telephone intercepts, the applicant was originally charged, in July 2007, with trafficking in a large commercial quantity of MDMA.
The applicant conducted a contested committal in relation to that charge. He denied any involvement with MDMA and, in his defence response filed with the court in July 2008, he claimed that he had never been involved with Samac in any transactions to do with MDMA.
The sentencing judge observed:
… Of course, it was always open to you to have indicated from the outset your guilt in respect of the count now before the Court, but this did not happen until late 2008 after the prosecution indicated that it would not pursue the large commercial quantity trafficking allegation. Ultimately, you entered your plea before me on 23 February 2009.
The applicant was aged 42 when sentenced, and 38 at the time of the offending. He was born in Croatia, one of four children. His father was an anaesthetist and his mother a nurse. His Honour’s assessment was that the applicant was the product of a close and loving family environment.
In 1970 three members of the family emigrated to Australia. The applicant remained here for some ten years and in 1980 returned to Croatia. He left school soon after his return to Croatia at the age of 14. He then worked for the next four years as a nursing assistant. At the age of 19 he entered the Croatian army in which he served for about a year.
In 1987, the applicant returned to this country. He held various jobs. These included working as a security guard at a number of different venues, including shopping centres and nightclubs. In 1989 the applicant married. There were two children of the marriage, a girl aged 17 and a boy aged 10 as at the date of sentencing.
In 1997 the applicant began working for a wholesale motor car business. Trajkovski was one of his co-workers. The applicant was also working for Waters at Waters’ nightclub in Melton. In 1999 the applicant and his wife left Melbourne and moved to Ballarat.
It was said, on the plea, that by October 2005 both Samac and Waters owed the applicant a good deal of money for motor vehicles that he had sold to them. It was suggested he became involved in drugs because, instead of paying him cash for those vehicles, Samac and Waters had paid him in MDMA tablets.
The applicant had previously been in trouble with the law. Between 1988, when he was 20 and 1996, when he was 28. He had been convicted of 11 offences arising out of four separate court appearances. Most of these prior offences involved dishonesty and led to fines or, in one case, a term of imprisonment which was wholly suspended. The sentencing judge was prepared to treat that criminal history as irrelevant. The applicant had no convictions relating to drugs. Importantly, he had never previously been incarcerated.
Character evidence was led on the plea which suggested that the applicant was an honest, reliable, hard working and conscientious employee whose actions, in this case, were totally out of character. There was also evidence that he was an exceptional family man, and a good father.
After setting out a number of mitigating factors, including the applicant’s prior good character and work record, his Honour concluded that the applicant had good prospects for rehabilitation. He qualified that finding by noting that the applicant lacked the degree of remorse which Vasic and Briggs had displayed. He referred to the applicant’s plea of guilty, and to its utilitarian value. He said that this plea would lead to a significant reduction to the applicant’s sentence.
The sentencing judge also referred to the lengthy delay which had taken place from the time of the offending to the time of sentence. His Honour said:
100.The second point concerns delay. I do take into account favourably to each of you that you have each had your matters hanging over you for a considerable time whilst awaiting resolution. That consideration is the strongest where there has been rehabilitation in the meantime, as is the case for each of you.
101.But the issue of delay must be placed in its proper context. As I understand it, there was a good deal of time taken in the preparation of the trial concerning Waters and Trajkovski, and for other cases which remained unsettled. It is not disputed that there was significant delay due to the time required to compile hand-up briefs which involved, in particular, the transcription of hundreds of hours of telephone intercepts and prosecution analysis as to the identification of various persons involved in these conversations and the need to reach a conclusion as to the level of trafficking in any particular circumstance. In all, police had to grapple with something in the order of 20,000 telephone intercepts. Waters alone accounted for over 10,000 of those.
102.Your cases did not ultimately resolve until shortly before the trial. It should have been possible to have then had your pleas heard and sentences passed but the view was taken, by all parties, that the pleas should await the trial, which was held between 23 February and 25 May this year. Then it was accepted that I should hear all the pleas before passing sentence so that there might be achieved, if possible, consistency and proportionality as between the different offenders and sentences to be imposed.
103.Regrettably, there has now been further delay since the completion of all the plea hearings due to a multiplicity of other commitments I have had, none of which is of your own making. This additional delay is also a factor to be taken into account in your favour.
The sentencing judge then identified various sentencing considerations of a general nature, including what had been said in the past by this Court as to the social evil brought about by trafficking in drugs of dependence. He specifically had regard to the maximum penalty for this offence, namely 15 years’ imprisonment.
The applicant initially relied on three grounds in support of his application for leave to appeal. They were in the following terms:
Ground 1 The learned sentencing Judge erred by failing to give sufficient weight to the applicant’s plea of guilty.
Ground 2 The learned sentencing Judge erred by failing to give sufficient weight to the delay between the offence and the imposition of sentence.
Ground 3 The sentence imposed was manifestly excessive.
Before this Court ground 1 was expressly abandoned, but the complaint regarding failure to give sufficient weight to the applicant’s plea of guilty was relied upon as a particular in support of ground 3, the ground complaining that the sentence is manifestly excessive.
In that context, and in dealing with the weight given to the plea of guilty, I do not understand his Honour’s observations at [78] of his sentencing remarks as detracting from the value of the plea of guilty, but merely as setting the context within which that plea was made. I also consider that his Honour was entitled to give less weight to the plea of guilty on the basis that the applicant’s initial denial, on the plea, of having received or sold the tablets was not indicative of genuine remorse. That finding was well open to his Honour.
As regards ground 2, the sentencing judge’s remarks regarding delay in this case largely replicate what his Honour said, on various occasions, when sentencing other participants in the ‘Operation Jedi’ drug enterprise. This Court has already expressed criticism of those remarks,[1] largely on the basis that the delay involved in every one of those cases merited significant mitigation irrespective of whether that delay was brought about, in part, by negotiations as to the basis upon which a plea would be offered.[2]
[1]Reilly v The Queen [2010] VSCA 278, [59]-[64]; Briggs v The Queen [2010] VSCA 279, [8] and Bennett v The Queen [2010] VSCA 280, [21]-[22].
[2]See generally R v Merrett (2007) 14 VR 392
Although some of the language used by his Honour in relation to the weight to be given to the lengthy delay that had occurred in the present case was infelicitous, in my view, that of itself would not vitiate this sentence.
However, ground 2 was relied upon not only on its own, but also in support of the applicant’s contention that the sentence he received was manifestly excessive. That takes me to ground 3.
In relation to that ground, the applicant was able to call in aid a number of mitigating factors. These included his plea of guilty, his lack of relevant prior convictions, his rehabilitation since the commission of these offences, his good employment history, his stable family background and strong family support and, of course, the very long delay that occurred between his offending and his being sentenced.
Importantly, this was the applicant’s first term of actual imprisonment. When one considers all of the mitigating factors that were present in this case, including in particular the delay of more than four years from the time of the offending to the date of sentence, and critically, in my view, the sentencing judge’s finding that he had good prospects of rehabilitation, the result should have been a significantly lower sentence than that imposed.
I note, in passing, that his Honour described the applicant, along with Vasic and Briggs, as having engaged in ‘serious activity over lengthy periods which had the purpose of putting illicit drugs into the community’. Whatever else may be said about the applicant’s culpability, two sales of MDMA over a period of between ten days and, perhaps, just over three weeks, cannot be described as trafficking over a ‘lengthy period’.
Without detracting in any way from the gravity of this offence, I consider that a sentence of three years’ imprisonment, with a non-parole period of two years, for this offence, committed in these circumstances, and by this offender, falls outside the range properly available in this case.
I would allow this appeal. I would re-sentence the applicant to a term of two years and three months’ imprisonment with a non-parole period of 16 months. I would declare, pursuant to 6AAA of the Sentencing Act 1991, that but for the applicant’s plea of guilty, I would have sentenced him to three years’ imprisonment, with a non-parole period of two years.
ASHLEY JA:
I agree.
The orders that the Court will make are these:
1.The applicant is granted leave to appeal against sentence imposed in the County Court on 16 December 2009.
2.The appeal is treated as instituted, heard instanter and is allowed.
3.The sentence is quashed. In lieu thereof, the appellant is sentenced to two years and three months' imprisonment.
4.The Court fixes a non‑parole period of 16 months' imprisonment.
5.The other orders made below are confirmed.
It is declared that the period of 482 days, not including this day, is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.
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