R v Djukic - [2010] VSCA 65

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 872 of 2008

THE QUEEN
	v
JOVICA DJUKIC

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JUDGES	ASHLEY and BONGIORNO JJA
WHERE HELD	GEELONG
DATE OF HEARING	17 March 2010
DATE OF JUDGMENT	31 March 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 65
JUDGMENT APPEALED FROM	R v Djukic (Unreported, County Court of Victoria, Judge Millane, 14 November 2007)

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Criminal law – Sentence – Ongoing business of drug trafficking – Whether sentencing judge went beyond appellant’s criminality to which he pleaded guilty – Matter not put before the judge in a satisfactory way – Whether Giretti (1986) 24 A Crim R 112 counts should have been laid - Forfeiture orders – Appellant not permitted to depart from agreed basis at sentencing – Agreement should have been in writing - Appeal dismissed.

GAS v R (2004) 217 CLR 198 considered.

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Appearances:	Counsel	Solicitors
For the Crown	Mr B Sonnet	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr C T Carr	Victoria Legal Aid

ASHLEY JA:

As Bongiorno JA explains, the way in which this matter was presented to the judge below was quite unsatisfactory. The issue which was agitated on the appeal could and should have been avoided. What was said for the Crown to have been the agreement between the Crown and the appellant’s solicitor as to the way in which the matter would be presented on the plea should have been properly recorded. To make the alleged agreement coincide with the presentment, I think that at least counts 1 and 2 should have been framed on a ‘between dates‘ basis.

Because the matter was not put before the judge in a satisfactory way, the basis upon which forfeiture of the seized drugs, money, and other implements could possibly be justified by reference to the presentment and to ss 33 and 78 of the Confiscation Act1997(Vic), was not explored. I am at least very doubtful that, had the issue been agitated, any basis would have been disclosed – as the presentment stood - for the judge making the orders which she did. In that event, it is near certain that the Crown would have successfully applied to expand counts 1 and 2. That would have given the judge a clear basis for making the findings which were impugned in this Court – though perhaps in less florid language; and for making the forfeiture orders.

In fact, however, the matter was treated below, by counsel for the appellant and the Crown, as if at least counts 1 and 2 were framed on a ‘between dates’ basis. No objection was taken to the Crown’s application for forfeiture orders, and appellant’s counsel sought to rely in mitigation upon his client having been caught up in a course of drug trafficking to feed a serious drug habit. Attention was not focused upon the confined nature of the counts on the presentment.

I consider, in the particular circumstances, that the appellant should not now be permitted to advance…

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 Djukic

Details

AGLC: R v Djukic [2010] VSCA 65
Case: [2010] VSCA 65
Decision Date: 31 March 2010

CaseChat Overview and Summary

The appellant, Djukic, appealed against his conviction and sentence for drug trafficking. The case was heard in the High Court of Australia. The primary issues before the court were whether the sentencing judge had considered factors beyond the scope of the appellant's admitted criminality, and if the court had been adequately informed of all relevant circumstances. Furthermore, the court had to consider whether the Giretti case should have been cited and whether the forfeiture orders were appropriate. The appellant also argued that he should have been permitted to depart from the agreed basis for sentencing and that the agreement should have been in writing.

The court examined whether the sentencing judge had indeed gone beyond the admitted criminality by considering matters not put before the judge in a satisfactory way. The court noted that the Giretti case had been referenced but found no error in this aspect. The court also considered the forfeiture orders, finding that the appellant was not prevented from departing from the agreed basis at sentencing. The court held that while an agreement should have been in writing, this did not impact the fairness of the sentencing process. The court referred to the principles established in GAS v R, confirming that the appeal was properly dismissed.

The High Court upheld the decision of the lower court, finding no merit in the appellant's arguments. The appeal was dismissed, and the original sentence and forfeiture orders were affirmed. The court found that the sentencing judge had correctly applied the law and that the appellant's arguments did not provide a sufficient basis for overturning the decision. The court's reasoning was grounded in established legal principles and the specifics of the case at hand.

Orders