R v Buhov - [2003] VSCA 106

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 284 of 2001

THE QUEEN
	v.
MICHAEL BUHOV

---

JUDGES:	PHILLIPS, C.J., VINCENT, J.A. and CUMMINS, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 March 2003
DATE OF JUDGMENT:	13 August 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 106

---

Criminal Law - Application for leave to appeal against sentence - Grounds alleging manifest excess and disparity with co-offender - Lowe v. The Queen (1984) 154 C.L.R. 616 applied - Application dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S. Pullen	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr G.J. Thomas	Victoria Legal Aid

PHILLIPS, C.J.:
VINCENT, J.A.:

The applicant, who is aged 41, pleaded guilty in the County Court at Melbourne on 9 November 2001 to a presentment containing two counts, viz: trafficking in a drug of dependence, pseudoephedrine, (count 1) and having in his possession a drug of dependence, 3,4-mehylenedioxyamphetamine (count 2).

These offences were committed at South Yarra and other places in June 1999 (count 1) and at South Yarra on 23 June 1999 (count 2) and carried maximum penalties of 15 years’ and (apparently) 12 months’ imprisonment respectively, with possible additional fines.

The applicant admitted some 15 prior convictions, mostly for offences of dishonesty. These were incurred between 1984 and 1991 and variously attracted fines and a community based order (the sentencing judge thought them irrelevant). After a plea for leniency, during which the learned judge received or was informed of viva voce character evidence touching the applicant together with work certificates and a psychological report compiled by Mr Ian Joblin, the applicant was sentenced on 26 November 2001 to be imprisoned upon count 1 for seven years’ and upon count 2 for one month, making for a total effective term of seven years’ imprisonment. A non-parole period of five years’ was fixed and a declaration made as to 254 days pre-sentence detention.

Sentenced with the applicant was his wife, Elizabeth, who had pleaded guilty to count 1. The sentence imposed on her was one of three years’ imprisonment wholly suspended.

The applicant later lodged notice of application for leave to appeal against sentence pleading the sole ground that the sentence imposed was manifestly excessive, but the learned Registrar, on 28 February 2002, granted leave to add an additional ground.

“2.The learned sentencing judge erred in imposing a sentence on the applicant which was so disparate from that imposed on the co-offender, Elizabeth Buhov, as to engender a justifiable sense of grievance on the part of the applicant and to give the appearance that justice had not been done.”

On 8 March, 2002, Phillips, J.A., sitting alone, refused the applicant leave to appeal.

It is now necessary, to set out in summary form, the facts of these matters. We have had resort to the undisputed summary of evidence supplied to the Court.

At approximately 2.40.p.m. on Wednesday 23 June 1999, a fire occurred at a rented furnished apartment situated at 7/85 Caroline Street, South Yarra. Witnesses…

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 Buhov

Details

AGLC: R v Buhov [2003] VSCA 106
Case: [2003] VSCA 106
Decision Date: 13 August 2003

CaseChat Overview and Summary

In the case of R v Buhov, the respondent, Buhov, applied for leave to appeal against his sentence, arguing that the sentence was manifestly excessive and that it created a disparity with his co-offender. The application was heard in the High Court of Australia. The primary legal issue was whether the sentence imposed was manifestly excessive and whether it created an unacceptable disparity with the sentence of his co-offender. These issues were considered in light of the principles established in Lowe v. The Queen (1984) 154 C.L.R. 616.

The High Court examined whether the sentence imposed on Buhov was manifestly excessive by considering whether it was grossly disproportionate to the gravity of the offence. The court also assessed whether the sentence created an unacceptable disparity with the sentence imposed on his co-offender. In applying the principles from Lowe v. The Queen, the court found that the sentence did not meet the threshold for being manifestly excessive nor did it create an unacceptable disparity with his co-offender. The sentence was considered appropriate in all the circumstances, taking into account the nature and circumstances of the offence, as well as the need for deterrence and rehabilitation.

Following its analysis, the High Court concluded that Buhov's application for leave to appeal against his sentence should be dismissed. The sentence was not found to be manifestly excessive or to create an unacceptable disparity with the co-offender's sentence. The principles from Lowe v. The Queen were applied, and it was determined that the sentence was proportionate to the offence and the circumstances surrounding it. Consequently, Buhov's application was dismissed, and the original sentence remained in place.

Orders