Oleyar v the Queen - [2015] VSCA 134

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0218

MIROSLAV OLEYAR

THE QUEEN

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JUDGES:	ASHLEY and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 May 2015
DATE OF JUDGMENT:	4 June 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 134
JUDGMENT APPEALED FROM:	DPP v Oleyar (Unreported, County Court of Victoria, Judge Chettle, 2 May 2014)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Trafficking a drug of dependence – Other drug-related offences – One co-offender – Second co-offender, or collaborator – Different sentences for trafficking offence – Whether parity principle infringed – Sentence of four years and six months’ imprisonment on trafficking charge – Whether manifestly excessive – Sentence of imprisonment on charge of possession of small amount of cannabis for own use – Sentence legally impermissible – Application for leave to appeal refused – Court’s power under s 280(3) Criminal Procedure Act 2009 exercised in order to amend impermissible sentence.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Cass	Victoria Legal Aid
For the Crown	Mr D A Trapnell QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

ASHLEY JA:

On 2 May 2014, a judge in the County Court sentenced Miroslav Oleyar to a total effective sentence of four years and six months’ imprisonment. His Honour fixed a non-parole period of three years. The details of the offending and the sentence imposed were as set out in the following table:

Charge on Indictment C1108142A.1 Offence Maximum Sentence

1 Trafficking drug of dependence (methylamphetamine) s 71AC Drugs, Poisons and Controlled Substances Act 1981 15 years’ imprisonment 4 years 6’ months imprisonment

2 Possess drug of dependence (cocaine) s 73(1) Drugs, Poisons and Controlled Substances Act 1981 30 penalty units or 1 year imprisonment or both s 73(1)(b) 6 months’ imprisonment — aggregate sentence with Charges 2–6

3 Possess drug of dependence (MDMA) s 73(1) Drugs, Poisons and Controlled Substances Act 1981 30 penalty units or 1 year imprisonment or both s 73(1)(b) 6 months’ imprisonment — aggregate sentence with Charges 2–6

4 Possess drug of dependence (LSD) s 73(1) Drugs, Poisons and Controlled Substances Act 1981 30 penalty units or 1 year imprisonment or both s 73(1)(b) 6 months’ imprisonment — aggregate sentence with Charges 2–6

5 Possess drug of dependence (psilocin) s 73(1) Drugs, Poisons and Controlled Substances Act 1981 30 penalty units or 1 year imprisonment or both s 73(1)(b) 6 months’ imprisonment — aggregate sentence with Charges 2–6

6 Possess drug of dependence (cannabis) s 73(1) Drugs, Poisons and Controlled Substances Act 1981 5 penalty units s 73(1)(b) 6 months’ imprisonment — aggregate sentence with Charges 2–6

7 Possess precursor chemical s 71D Drugs, Poisons and Controlled Substances Act 1981 600 penalty units or 6 years’ imprisonment or both s 71D 6 months’ imprisonment

Charge on Indictment C1108142A.1 Offence Maximum Sentence

8 Knowingly deal with proceeds of crime s 194(2) Crimes Act 1958 15 years’ imprisonment s 194(2) 9 months’ imprisonment

Total Effective Sentence: 4 years 6…

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 Oleyar v the Queen

Details

AGLC: Oleyar v the Queen [2015] VSCA 134
Case: [2015] VSCA 134
Decision Date: 4 June 2015

CaseChat Overview and Summary

The appellant, Oleyar, appealed against his sentence imposed by the County Court, arguing that it was manifestly excessive and that there had been a breach of the parity principle. The appellant had been found guilty of trafficking a drug of dependence and possessing a small amount of cannabis for personal use. The court had sentenced him to four years and six months' imprisonment for the trafficking offence and a concurrent sentence of imprisonment for the possession charge. The appellant's co-offenders received different sentences for the same trafficking offence.

The legal issues before the court were whether the sentence imposed on the appellant was manifestly excessive and whether there had been a breach of the parity principle. The appellant argued that his sentence was manifestly excessive, given the sentences imposed on his co-offenders. Additionally, the appellant submitted that the sentence imposed for the possession charge was legally impermissible, as the court had not taken into account the small quantity of cannabis in determining the sentence. The Crown contended that the sentence was not manifestly excessive and that there had been no breach of the parity principle.

The court held that the sentence was not manifestly excessive, as the court had considered all relevant factors, including the appellant's criminal history and the seriousness of the offences. The court also found that there had been no breach of the parity principle, as the court had considered the different roles of the co-offenders in determining the sentences. However, the court found that the sentence imposed for the possession charge was legally impermissible, as the court had not taken into account the small quantity of cannabis in determining the sentence. The court exercised its power under section 280(3) of the Criminal Procedure Act 2009 to amend the impermissible sentence. The application for leave to appeal was refused.

The court dismissed the appeal and amended the sentence imposed for the possession charge. The appellant's sentence for the trafficking offence remained unchanged. The court ordered that the appellant be released on parole eligibility after serving two years and six months of his sentence for the trafficking offence. The appellant was also ordered to serve the remainder of his sentence for the possession charge concurrently with the sentence for the trafficking offence.

Orders