R v Hnativ - [1998] VSCA 113

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 121 of 1998

THE QUEEN

SIMON HNATIV

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JUDGES:	PHILLIPS, C.J., CALLAWAY and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 August 1998
DATE OF JUDGMENT:	3 August 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 113

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Criminal law - Appeal against sentence for trafficking in heroin - Complaint of disparity of sentence vis a vis co-offenders sentenced after the applicant - Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. R.A. Elston	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. B.E. Walters	Slades & Parsons

PHILLIPS, C.J.:

The applicant, who is aged 24, pleaded guilty in the County Court at Melbourne on 8 May last to a presentment containing one count of trafficking in heroin (count 1), one count of possession of cannabis (count 2) and one count of theft (count 3). These offences, which were committed between 1 August 1997 and 23 October 1997, carried maximum penalties of 15 years' imprisonment and a fine of $100,000, 5 years' imprisonment and a fine of $40,000 and 10 years' imprisonment respectively. The applicant admitted 86 previous convictions from nine court appearances between April 1995 and 27 August 1997. These included 70 convictions for offences of dishonesty, including obtaining property by deception, theft, making false documents and forging a prescription.
After hearing a plea for leniency, which included viva voce evidence and reports concerning urine samples, the judge sentenced the applicant as follows:
count 1 - three-and-a-half years' imprisonment;
count 2 - a fine of $75; count 3 - a fine of $200.
A declaration was made as to 88 days' pre-sentence detention and a non-parole period of 18 months was fixed.
The applicant later lodged notice of application for leave to appeal against sentence, eventually pleading that the sentence was manifestly excessive (ground 1) and that the disparity between the sentences imposed on the applicant and co- offenders left the applicant with a justifiable sense of grievance (ground 2).
It is now necessary to set out in summary form the facts of these matters. Between 1 August 1997 and 23 October 1997 the applicant sold caps of heroin for between $40 and $50 each and half-gram quantities of heroin for $200 each. The applicant was involved in purchasing the heroin, cutting it and packaging it in various ways. He used an alias in making sales. On 1 September 1997 the police searched the applicant's rubbish bin and found packaging materials. Surveillance of the applicant showed him attending at many cars at an oval near his home. He had contacts with the occupants, both at the oval and in other locations in the northern suburbs. The applicant was on occasions conveyed to locations by a Caitlin Sayers or a Matthew Samuel Bursey. The police saw the applicant exchanging heroin for cash up to three times a day when he was under observation. The police also arranged a sale of heroin by the applicant for $200 to an…

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 Hnativ

Details

AGLC: R v Hnativ [1998] VSCA 113
Case: [1998] VSCA 113
Decision Date: 3 August 1998

CaseChat Overview and Summary

The appeal in R v Hnativ involved the appellant, who had been convicted of trafficking in heroin and was sentenced by the County Court of Victoria. The appellant sought to appeal against the severity of the sentence imposed on him, arguing that it was disproportionate when compared to the sentences given to his co-offenders who were sentenced after him. The Court of Appeal was tasked with determining whether the sentence was manifestly inadequate or excessive in light of the principles of sentencing and the circumstances of the case.

The primary legal issue before the Court of Appeal was whether the sentence imposed on the appellant was manifestly excessive or inadequate, taking into account the principles of sentencing and the relative roles of the appellant and his co-offenders in the commission of the offence. The appellant argued that the disparity in sentences between himself and his co-offenders warranted a reduction in his sentence, while the prosecution maintained that the sentence was appropriate given the appellant's role and the circumstances of the case. The Court needed to weigh these arguments against the principles of sentencing, including the need for deterrence, retribution, and the rehabilitation of offenders.

The Court of Appeal reviewed the appellant's role in the offence, the severity of the crime, and the sentences imposed on his co-offenders. It found that the appellant played a significant role in the trafficking operation and that the sentence imposed was commensurate with the gravity of the offence. The Court held that the sentence was not manifestly excessive and that the appellant's complaint about the disparity with his co-offenders' sentences did not warrant a reduction in his sentence. Consequently, the Court dismissed the appeal, affirming that the sentence was appropriate in all the circumstances. The Court's decision emphasised the importance of individualising sentencing based on the specific circumstances of each offender and the principles that guide judicial discretion in imposing sentences.

Orders