Marku v The Queen - [2012] VSCA 51

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0277
VALENTIN MARKU	Appellant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN and BONGIORNO JJA and WILLIAMS AJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	31 January 2012
DATE OF JUDGMENT:	23 March 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 51
JUDGMENT APPEALED FROM:	(Unreported, County Court of Victoria, Judge Gullaci, date of sentence 2 August 2010)

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CRIMINAL LAW – Appeal – Sentence – Cultivation and trafficking of cannabis – Offending whilst on bail – Sophisticated enterprise involving four properties – Total effective sentence of 6 years’ imprisonment with a non-parole period of 4 years not manifestly excessive – Co-offender received lesser sentence – Whether principle of parity offended – Circumstances of co-offender markedly different to those of appellant – Disparity in sentences justified – Appeal dismissed – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D A Dann	C Marshall & Assocs
For the Crown	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with Williams AJA.

BONGIORNO JA:

I also agree with Williams AJA.

WILLIAMS AJA:

The appellant was sentenced after pleading guilty to three counts of cultivation of cannabis, three counts of theft of electricity and one count of trafficking cannabis. Following a plea on 19 July 2010, he was sentenced on 2 August 2010 as follows:

Count Offence Maximum Sentence Cumulation

Presentment C0806334 (Presentment 1)

1 Cultivate Cannabis
[s72B Drugs Poisons and Controlled Substances Act 1981 (Vic)] 15 years
[s72B(b) Drugs Poisons and Controlled Substances Act 1981 (Vic)] 3 years Base

2 Theft of Electricity
[s74 Crimes Act 1958 (Vic)] 10 years
[s74(1) Crimes Act 1958 (Vic)] 6 months 2 months

3 Cultivate Cannabis
[s72B Drugs Poisons and Controlled Substances Act 1981 (Vic)] 15 years
[s72B(b) Drugs Poisons and Controlled Substances Act 1981 (Vic)] 3 years 9 months

4 Theft of Electricity
[s74 Crimes Act 1958 (Vic)] 10 years
[s74(1) Crimes Act 1958 (Vic)] 6 months 2 months

5 Cultivate Cannabis
[s72B Drugs Poisons and Controlled Substances Act 1981 (Vic)] 15 years
[s72B(b) Drugs Poisons and Controlled Substances Act 1981 (Vic)] 3 years 9 months

6 Theft of Electricity
[s74 Crimes Act 1958 (Vic)] 10 years
[s74(1) Crimes Act 1958 (Vic)] 6 months 2 months

Presentment W00637253.1 (Presentment 2)

1 Traffick Cannabis
[s71AC Drugs Poisons and Controlled Substances Act 1981 (Vic)] 15 years
[s71AC Drugs Poisons and Controlled Substances Act 1981 (Vic)] 3 years 12 months

Total Effective Sentence: 6 years

Non-Parole Period: 4 years

Pre-sentence Detention Declared: 520 days

6AAA Statement: 7 years’ imprisonment with a non-parole period of 5 years and 6 months

Other orders:
Forfeiture Order

On 22 August 2010 the appellant was granted leave to appeal, on the ground of manifest excess, against the individual sentences on counts 1, 3 and 5 in presentment 1, count 1 in presentment 2 and the orders for cumulation.

The appellant was ultimately permitted to appeal against his sentences on the additional ground that there…

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 Marku v The Queen

Details

AGLC: Marku v The Queen [2012] VSCA 51
Case: [2012] VSCA 51
Decision Date: 23 March 2012

CaseChat Overview and Summary

In the case of Marku v The Queen, the appellant, Marku, sought to appeal his sentence for cultivating and trafficking cannabis, which was imposed after he was found guilty of these offences while on bail. The case was heard and determined by the High Court of Australia. The central issue before the court was whether the total effective sentence of six years’ imprisonment with a non-parole period of four years was manifestly excessive, as well as whether the disparity between Marku’s sentence and that of his co-offender violated the principle of parity.

The court considered the severity of Marku's involvement in the sophisticated cannabis enterprise, which included the use of four properties for cultivation and distribution. It was noted that the sentence was not excessive, given the appellant's significant role in the operation. Furthermore, the court examined the principle of parity in sentencing, which requires that similar offenders be treated alike. However, the court found that the circumstances of the co-offender were markedly different, justifying the disparity in their respective sentences. The co-offender had a lesser involvement and had shown remorse, which were factors that contributed to the differing sentences.

Given the reasoning above, the court concluded that the sentence imposed on Marku was not manifestly excessive and that the principle of parity was not offended by the disparity in sentences. The appeal was therefore dismissed, with the court finding no point of principle involved in the case. As a result, the appellant’s conviction and sentence stand affirmed.

Orders