R v Bukvic

Case [2010] SASC 195

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BUKVIC

[2010] SASC 195

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice Kourakis)

30 June 2010

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING CANNABIS, INDIAN HEMP OR HASHISH

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - PARITY BETWEEN CO-OFFENDERS - GROUNDS FOR DISCRIMINATION BETWEEN CO-OFFENDERS

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER

Appellant convicted of attempting to traffic in a controlled drug - appellant sentenced to two years and five months to be released after nine months upon entering a recognisance to be of good behaviour for two years - whether sentence proportionate to co-offenders - whether an isolated offence - consideration of onus of proof with respect to previous uncharged conduct - whether sentence manifestly excessive.

Held:  appeal dismissed - sufficient distinction between the offending of the appellant and co-offenders - Judge properly considered uncharged conduct as denying leniency in sentence.

Criminal Code (Cth) s 11.1, s 302.4; Crimes Act 1914 (Cth) s 16A, s 20(1)(b); Controlled Substances Act 1984 (SA) s 33L; Criminal Law Consolidation Act 1935 (SA) s 50; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Homer (1976) 13 SASR 377; Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295; R v MacGowan (1986) 42 SASR 580; Wakely v Police (2003) 229 LSJS 327; R v Chamings [2009] SASC 82; R v McInerney (1986) 42 SASR 111; Weininger v The Queen (2003) 212 CLR 629; Veen v The Queen (No 2) (1988) 164 CLR 464; Ryan v The Queen (2001) 206 CLR 267; R v Olbrich (1999) 199 CLR 270; R v De Simoni (1981) 147 CLR 383; Savvas v The Queen (1995) 183 CLR 1; R v Reiner (1974) 8 SASR 102; R v Godfrey (1993) 69 SASR 413; R v D (1997) 69 SASR 413; R v Lobban (2001) 80 SASR 550; R v Guthrie and Watt [2003] VSC 323; R v H (1980) 3 A Crim R 53; R v Holyoak (1995) 82 A Crim R 502; R v JCW (2000) 112 A Crim R 466; NJL v The Queen [2007] NSWCCA 261; Giles v Director of Public Prosecutions (NSW) [2009] NSWCCA 308; R v D [1996] 1 Qd R 363; R v Bettridge (Unreported, Court of Appeal, Queensland, No 51 of 1998, 27 May 1998); R v CJK (2009) 22 VR 104; Director of Public Prosecutions v McMaster (2008) 19 VR 191; R v Haji-Noor (2007) 21 NTLR 127; R v McNaughton (2006) 66 NSWLR 566,…

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R v Bukvic [2010] SASC 195
Case
[2010] SASC 195
Decision Date

CaseChat Overview and Summary

In the matter of R v Bukvic, the appellant appealed against his conviction for attempting to traffic in a controlled drug, specifically cannabis. The appellant was sentenced to two years and five months imprisonment, with a non-custodial release after serving nine months, contingent on him entering a recognisance to be of good behaviour for two years. The central legal issues in this case revolved around the proportionality of the sentence relative to that of the co-offenders and the consideration of prior uncharged conduct by the sentencing court. The appellant argued that the sentence was disproportionate compared to his co-offenders and that the sentence was manifestly excessive.

The court addressed the principle of parity in sentencing, which holds that co-offenders should receive sentences proportionate to their respective degrees of culpability and individual circumstances. It was noted that the principle of parity requires that any marked disparity in sentences should be justified by differences in the offenders' culpability and circumstances. However, the court found that the appellant's comparison with his co-offender, Mr Lyberopoulos, was not valid as the sentencing remarks of the judge who sentenced Mr Lyberopoulos were not available. Despite the appellant's argument that the sentence was disproportionate, the court held that the sentence was proportionate given the totality of the circumstances and the appellant's role in the offence. Additionally, the court found that the sentence was not manifestly excessive, considering the nature of the offence and the appellant's criminal history.

Ultimately, the court dismissed the appeal, holding that while the sentence was not perfectly aligned with that of the co-offender, it was proportionate and not manifestly excessive. The reasoning provided by the court underscored the importance of considering the totality of the circumstances, including the offenders' culpability and individual circumstances, in sentencing decisions. The court's decision reinforces the principle that sentences should be proportionate and not arbitrarily excessive, while also acknowledging the need for flexibility in sentencing to account for the unique aspects of each case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

This ground of appeal fails.Conclusion For the reasons given above, I would grant the appellant permission to appeal on the grounds which complained of a lack of parity but would dismiss the appeal. KOURAKIS J: It is a principle of the common law that no person shall be punished for conduct unless he or she has first been convicted of an offence committed by that conduct. I refer to a single exception to that principle which is established by long standing authority at [79] below. But for that exception, I would have regarded the principle as a fundamental common law limitation on the judicial power to punish and not just as a rule which guides the exercise of that power. When a court’s sentencing power is enlivened by the conviction of an offender on one offence, the court cannot take the opportunity to impose punishment for another offence of which he or she has not been convicted but which has come to the attention of the Court. If the objective and personal circumstances of the offence and the offender (which I shall refer to as the totality of the known circumstances) on which the offender is to be sentenced warrant a particular penalty, a greater penalty cannot be imposed because the proved or admitted facts show that he or she has committed one or more other offences. The principle is not that, where the totality of the known circumstances are otherwise the same, an offender who is known to have committed other offences must receive the same punishment as an offender who has not, or is not known to have, committed any other offences. Rather, the principle is that no punishment should be imposed which is greater than the punishment otherwise warranted by the totality of the known circumstances.[34] The distinction is subtle. However, it has sensible and practical consequences which can be illustrated by reference to the following hypothetical circumstances.[34] The authorities and statements of principle are collected in B P Boucaut, ‘Punishing repeat offenders: How should prior convictions be taken into account in sentencing?’ (Part 1, July 2009) Vol 31 Issue 6 Law Society of South Australia Bulletin 22; (Part 2, August 2009) Vol 31 Issue 7 Law Society of South Australia Bulletin 12; (Part 3, September 2009) Vol 31 Issue 8 Law Society of South Australia Bulletin 12. It sometimes happens that an offender with prior convictions comes to be sentenced by a court (which I shall refer to as a nescient court) which is not informed of whether or not the defendant has criminal antecedents. If defence counsel knows that to be the case, he or she must of course take care not to submit, or indirectly suggest, that the offender has otherwise led a blameless life. Quite apart from proscribing misleading conduct because it is inherently unacceptable, that ethical rule recognises that an offender who is sentenced by a nescient court will receive a higher sentence than an offender who is known to be a first-time offender if the totality of the circumstances are otherwise the same. This is because the court will treat the fact that the offender is a first-time offender, when that fact is known to the court, as a mitigating circumstance. Where an offender not only has no criminal history, but is also known to generally be of positive good character,[35] the penalty imposed will be less again if the totality of the remaining circumstances are otherwise the same.[35] See the distinction drawn in Weininger v The Queen (2003) 212 CLR 629 at 638 [26].

Ratio Decidendi

Legal Principle Established

The appellant pleaded not guilty to his charge and his trial commenced on 16 November 2009. However, on the sixth day of trial, the appellant was re‑arraigned and then pleaded guilty. The Judge took as a starting point a sentence of imprisonment of three years. He reduced that sentence to two years and eight months on account of the appellant’s guilty plea. The Judge then reduced that period by a further three months on account of the period of 76 days which the appellant had spent in custody and the period of approximately 14 months which he had spent on home detention bail. That resulted in a sentence of two years and five months. The Judge refused to suspend that sentence wholly and, as noted above, ordered that the appellant be released after serving nine months of the sentence in custody.Consideration of Parity The relevant principles concerning parity in sentencing are well settled. Like cases ought to be treated alike.[4] The concept of equality requires that, as between co-offenders, there should not be a marked disparity giving rise to “a justifiable sense of grievance”.[5] In R v MacGowan,[6] King CJ stated the underlying principle in the following terms:Where two or more persons are sentenced by the same judge for the same crime or crimes the sentences imposed on them should be proportionate to their respective degrees of culpability and to the various personal factors of aggravation and mitigation. Any distinctions in the sentences imposed should fairly reflect differences in the respective degrees of culpability and the circumstances of the offenders and should be explained by the sentencing judge. Unjustified disparities will be rectified by the Court of Criminal Appeal …[7]King CJ also emphasised that when different Judges are sentencing co‑offenders, the sentences should be proportionate to the respective degrees of culpability and the individual circumstances of the co‑offenders.[4] Lowe v The Queen (1984) 154 CLR 606 at 610; Postiglione v The Queen (1997) 189 CLR 295 at 301.[5] Ibid.[6] (1986) 42 SASR 580.[7] Ibid at 582-3. I do not understand the later decision of the High Court in Postiglione v The Queen[8] to have altered the position summarised by King CJ in MacGowan. The approach has been applied in a number of later decisions of this Court, including Wakely v Police[9] and R v Chamings.[10][8] (1997) 189 CLR 295.[9] [2003] SASC 295; (2003) 229 LSJS 327.[10] [2009] SASC 82. The appellant emphasised that the head sentence imposed upon him was only one month less than that imposed upon Mr Lyberopoulos and that Mr Lyberopoulos was required to serve only three months more than him in custody before his release on a recognisance. He also emphasised the greater gravity of Mr Lyberopoulos’ conduct as he was a principal, and his offending involved trafficking in some 10kg of cannabis, the use of two couriers, and his persuasion of R O’R to act as a courier against her initial reluctance. In my opinion, no useful comparison can be made with the sentence imposed upon Mr Lyberopoulos. The sentencing remarks of the Judge who sentenced Mr Lyberopoulos were not placed before the sentencing Judge, nor before this Court. Those remarks are apparently the subject of a suppression order. However, there is no reason why an application could not have been made to the Judge who sentenced Mr Lyberopoulos for a variation in the suppression order which would have permitted the remarks to be available to the Judge sentencing the appellant, and to this Court.