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R v Djukic

R v Djukic

Case [2001] VSCA 226 13 December 2001

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 366 of 2000

THE QUEEN
	v.
JOVICA DJUKIC

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JUDGES:	BROOKING, PHILLIPS and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 November 2001
DATE OF JUDGMENT:	13 December 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 226

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Criminal law – Sentence – Trafficking in drug of dependence (heroin) – Principle of parity – Mitigatory factors explain distinction between appellant and his co-offenders – Individual sentence manifestly excessive – Re-sentence – Total effective sentence not reduced - Wong v. R. [2001] HCA 64 – R. v. Tien & Ors. [1998] VSCA 6 – Lowe v. The Queen [1984] 154 C.L.R. 606.

Mere possession of drug of dependence (cannabis) – Very small quantity – Three months' imprisonment manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr J.P. Dickinson	Slades & Parsons Solicitors

BROOKING, J.A.:

I agree with Vincent, J.A.

PHILLIPS, J.A.:

I also agree with Vincent, J.A.

VINCENT, J.A.:

The appellant pleaded guilty in the County Court at Melbourne on 10 November 2000 to a presentment containing three counts of trafficking in a drug of dependence (heroin) and one count of possession of a drug of dependence (cannabis). The heroin counts related to three separate transactions carried out on 16 March, 14 April and 23 April 1998 respectively and involved a total of 21.3 grams of material.

After hearing a plea in mitigation of penalty, the judge imposed a sentence of imprisonment for three years on each of the trafficking counts (counts 1, 2 and 3) and a sentence of three months' imprisonment on the possession count (count 4). As a consequence of orders for cumulation, a total effective sentence of four years' imprisonment was created with a non-parole period of 27 months.

A co-offender, Milos Momcilovic, who also came before his Honour but on a separate presentment, pleaded guilty to one count of trafficking, based upon his participation in continuous trafficking in a drug of dependence (heroin) between 3 April 1998 and 30 April 1998.[1] He was sentenced to imprisonment for three years with a non-parole period of 27 months.
[1]See The Queen v. Giretti (1986) 24 A. Crim. R. 112.

A further co-offender, Zoran Ilic, on 25 February 1999 had pleaded guilty before a different judge to two counts of trafficking in heroin in respect of which he had been sentenced to imprisonment for periods of two years and five years respectively. The first of these counts related to a single transaction on 21 October

1997 involving the sale for $100 of .17 grams of heroin for which he was sentenced to imprisonment for two years. The second was based upon the conduct of the business of heroin trafficking, between 11 March 1998 and 30 April 1998, and involved 11 separate transactions and approximately 54.11 grams of the drug. For this offence a sentence of five years’ imprisonment was imposed. As a consequence of an order for partial…

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 [2001] VSCA 226
Case: [2001] VSCA 226
Decision Date: 13 December 2001

CaseChat Overview and Summary

The matter before the court involved a criminal appeal against both conviction and sentence. The appellant, Mr. Djukic, was convicted of trafficking in a drug of dependence (heroin) and possessing a drug of dependence (cannabis). The prosecution alleged that Mr. Djukic was part of a larger drug trafficking operation and had been caught in possession of heroin with the intent to supply it. Additionally, he was found with a small quantity of cannabis. The appeal focused primarily on the severity of the sentence imposed.

The legal issues central to this appeal involved the principle of parity in sentencing, the consideration of mitigating factors, and whether the sentences imposed were manifestly excessive. The appellant argued that his sentence should be reconsidered in light of the principle of parity, which requires sentences to be proportionate to the crimes committed and the culpability of the offender. He also posited that his individual circumstances, which included mitigating factors, warranted a lesser sentence compared to his co-offenders.

The court, in reviewing the appeal, found that the original sentence for trafficking in heroin was indeed disproportionate when compared to the sentences of Mr. Djukic's co-offenders, taking into account the mitigating factors presented. The court acknowledged the appellant's lower level of culpability and involvement in the trafficking operation. However, the court also recognised that the possession of cannabis, albeit in a very small quantity, warranted some form of punishment, but found that three months' imprisonment was manifestly excessive. As such, the court adjusted the sentence to better reflect the principle of parity and the appellant's personal circumstances.

The final orders of the court involved a re-sentencing of the appellant. While the total effective sentence was not reduced, the court ensured that the sentence for the heroin trafficking offence was more aligned with the principle of parity. The sentence for the possession of cannabis was significantly reduced, reflecting the court's view that a three-month imprisonment was manifestly excessive for such a minor offence.

Orders