R v Ilic - [2003] VSCA 82

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 33 of 2003

THE QUEEN
	v.
DAVID ILIC

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JUDGES:	WINNEKE, A.C.J., CALLAWAY and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 June 2003
DATE OF JUDGMENT:	25 June 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 82

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Criminal law - Sentencing - Trafficking in MDMA, methylamphetamine and cocaine and possession of cocaine - Sentence on count of possession manifestly excessive - Hardship to appellant's parents not exceptional but taken into account as making service of sentence more onerous - Appellant re-sentenced to two-and-a-half years' imprisonment of which 18 months suspended for three years.

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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 O.P. Holdenson, Q.C.	Valos Black & Assoc.

WINNEKE, A.C.J.:

For the reasons given by Callaway, J.A., I agree that the appeal should be allowed and that the orders which his Honour proposes should be made by this Court.

CALLAWAY, J.A.:

The appellant, who is now aged 32, pleaded guilty in the County Court to one count of trafficking in a methylamphetamine compound known as "MDMA" (count 1), one count of trafficking in methylamphetamine (count 2), one count of trafficking in cocaine (count 3) and one count of possession of cocaine (count 4). He had no previous convictions. After hearing a plea for leniency and taking time for consideration, the learned judge sentenced the appellant on 21^st February 2003 to two years' imprisonment on each of counts 1 and 2, 18 months' imprisonment on count 3 and six months' imprisonment on count 4. His Honour directed that four months of the sentence imposed on count 2 and two months of the sentence imposed on count 3 be served "cumulatively upon the sentence imposed on count 1", but he intended them to be served cumulatively upon each other as well, because the total effective sentence was declared to be two-and-a-half years' imprisonment. A non-parole period of 14 months was fixed and a declaration made regarding three days' pre-sentence detention. Leave to appeal against sentence was granted on 11^th April 2003.

There were seven grounds of appeal set out in the notice of application for leave to appeal:

"1.The learned sentencing judge erred in failing to accord sufficient weight to the following factors in mitigation, either alone or in combination:
(a)the fact that the applicant had no prior convictions;
(b)the evidence of rehabilitation demonstrated by the applicant;
(c)the illness of the applicant's father and his role in caring

for both his father and his mother;
(d)the applicant's early plea of guilty;
(e)the applicant's remorse and regret for his involvement in criminal activity; and
(f)the applicant's prospects for rehabilitation.

2.The learned sentencing judge erred in failing to give sufficient weight to the principle of parity having regard to the sentences imposed upon co-accused:
(a)Thorburn; and
(b)Zaitshek.

3.The learned sentencing judge erred in taking into account the evidence of a significant amount of money located at the time of the…

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 Ilic

Details

AGLC: R v Ilic [2003] VSCA 82
Case: [2003] VSCA 82
Decision Date: 25 June 2003

CaseChat Overview and Summary

In the case of R v Ilic, the appellant was convicted for trafficking in MDMA, methylamphetamine, and cocaine, as well as possession of cocaine. The court of appeal was tasked with reviewing the sentence imposed by the primary judge. The appellant's sentence was deemed manifestly excessive for the possession charge, prompting the appeal. The court was required to determine if the sentence for the possession charge was excessive and whether the hardship faced by the appellant's parents should be taken into account when considering the severity of the sentence.

The court noted that while the hardship experienced by the appellant's parents was not exceptional, it was a factor that could make the service of the sentence more onerous. The appeal against the sentence for trafficking was dismissed, but the appeal against the sentence for possession was upheld. The court re-sentenced the appellant to two-and-a-half years' imprisonment, with 18 months suspended for three years. This decision acknowledged the need for a proportionate sentence that took into account the unique circumstances of the case, while ensuring that the sentence remained within appropriate bounds.

The court's reasoning focused on the principle of proportionality in sentencing, ensuring that the punishment fits the crime. By reducing the sentence for the possession charge, the court demonstrated its commitment to this principle. The court's decision also highlighted the importance of considering individual circumstances, such as the impact on family members, in the sentencing process. The re-sentence imposed by the court of appeal aimed to balance the need for punishment with the need to avoid excessive hardship, resulting in a sentence that was both fair and just.

The final orders of the court of appeal included the reduction of the sentence for the possession charge and the imposition of a new sentence of two-and-a-half years' imprisonment, with 18 months suspended for three years. This decision reflected the court's commitment to ensuring that sentences are proportionate and take into account the unique circumstances of each case. The outcome of this appeal serves as a reminder of the importance of careful consideration in the sentencing process, ensuring that justice is served in a manner that is both fair and reasonable.

Orders