R v Arnautovic - [2001] VSCA 34

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 253 of 1999

THE QUEEN

DRAGAN ANTHONY ARNAUTOVIC

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JUDGES:	WINNEKE, P., BROOKING and CHARLES, JJ.A.
WHERE HELD:	BALLARAT
DATE OF HEARING:	19 March 2001
DATE OF JUDGMENT:	19 March 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 34

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Criminal law – Sentence – Trafficking in commercial quantity of heroin – “Serious offender” – Status to be established before sentence for “relevant offence” – Applicant sentenced in error as “serious drug offender” and given sentence viewed by judge as disproportionate to objective gravity of offence – Court nevertheless not satisfied different sentence should have been passed – 12 years with non-parole period of 9 upheld.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. P.A. Coghlan, Q.C.	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. P.F. Tehan, Q.C.	Mulcahy Mendelson & Round

WINNEKE, P.:

I invite Brooking, J.A. to give the first judgment in this application.

BROOKING, J.A.:

On 27 September 1999, after a 16-sitting-day trial in the County Court, Dragan Arnautovic was convicted of trafficking in a commercial quantity of heroin between 11 September and 18 November 1997. On 13 October 1999 he was sentenced to 12 years' imprisonment with a non-parole period of 9 years. He applied for leave to appeal against conviction and sentence, but later abandoned his conviction application, and so the sentence application alone has come before us. On the 7th of this month he obtained an order replacing the original, inappropriate grounds of appeal by four new grounds, one of which was, according to his counsel's later outline of submissions, to be abandoned, leaving three grounds, which I shall read because they still have some relevancy:

"1(a) The learned sentencing judge erred in imposing a sentence longer than that proportionate to the gravity of the offence;
(b) The learned sentencing judge erred in failing to have any or any sufficient regard to the principle of proportionality.

3.The sentence imposed upon the applicant is manifestly disparate with that imposed upon the co-offender, Jackson.

4.The sentence imposed upon the applicant was manifestly excessive."

The applicant admitted 29 previous convictions, having been before the court 20 times between 1980 and 1997. Some of these convictions were of no significance, but they did include crimes of dishonesty and assault and similar

offences. In addition there were two convictions for possessing, and two for using, a drug of dependence and, much more importantly, there were more recently three trafficking convictions and, in addition, one possession conviction, which had itself attracted a substantial sentence. More particularly, in November 1990, the applicant had been convicted in the County Court on two counts of trafficking in heroin and one count of possession of that drug and been given a total effective sentence of 9 years' imprisonment with a minimum term of 7 years - a very long sentence, it may be said, for those days - and in March 1997 he had been convicted of trafficking in heroin and sentenced to…

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 R v Arnautovic

Details

AGLC: R v Arnautovic [2001] VSCA 34
Case: [2001] VSCA 34
Decision Date: 19 March 2001

CaseChat Overview and Summary

In the case of R v Arnautovic, the respondent was convicted of trafficking in a commercial quantity of heroin. He was sentenced to 12 years imprisonment with a non-parole period of 9 years. The respondent appealed against his sentence on the grounds that he should not have been classified as a “serious drug offender” and thus, his sentence was disproportionate to the objective gravity of his offence. The appeal was heard in the Court of Appeal of the Supreme Court of Victoria.

The central legal issue before the court was whether the respondent’s status as a “serious drug offender” was correctly established before sentencing for the “relevant offence”. The court had to determine if the classification of the respondent as a “serious drug offender” was appropriate and if the sentence was proportionate to the offence committed. Additionally, the court needed to consider whether a different sentence should have been imposed.

The Court of Appeal found that the respondent’s status as a “serious drug offender” was indeed established prior to sentencing, and the trial judge was correct in this regard. However, the Court noted that the sentence imposed was viewed by the trial judge as disproportionate to the objective gravity of the offence. Despite this, the appellate court was not satisfied that a different sentence should have been passed. The court upheld the original sentence of 12 years with a non-parole period of 9 years. The appeal was dismissed, and the original sentence was confirmed.

Orders