R v Komljenovic - [2006] VSCA 136

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 353 of 2004

THE QUEEN
	v.
DAVID (DRAGO) KOMLJENOVIC

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JUDGES:	CHERNOV, NETTLE and REDLICH, JJ.A
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 June 2006
DATE OF JUDGMENT:	30 June 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 136

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CRIMINAL LAW – Evidence – Wrongful admission of evidence – Adequacy of direction – Evidence of consciousness of guilt – Whether statement of accused capable of being regarded as a lie – Whether evidence sufficient to establish regular or continuous trafficking in heroin – Where trafficking in other drugs provides context – R v Giretti (1986) 24 A Crim R 112 – Application for leave to appeal against conviction dismissed

CRIMINAL LAW – Sentencing – Trafficking in heroin and cannabis – Manifest excess – Parity – Application for leave to appeal against sentence dismissed

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

For the Applicant

Mr C.B. Boyce

Victoria Legal Aid

CHERNOV,
NETTLE,
REDLICH, JJA:

On 23 November 2004 the applicant, Drago Komljenovic, who is now aged 51, was convicted by a jury in the County Court at Melbourne on one count of trafficking in heroin between 13 June 2002 and 9 August 2002 (count 1) and one count of trafficking in cannabis L between 27 March 2002 and 9 August 2002 (count 5). On 2 December 2004 the trial judge sentenced the applicant to five years’ imprisonment on count 1 and two years’ imprisonment on count 5. The judge ordered that one year of the sentence imposed on count 5 be served cumulatively upon the sentence imposed on count 1 making a total effective sentence of six years’ imprisonment. His Honour ordered that the applicant serve a minimum term of four years before becoming eligible for parole. His Honour declared, pursuant to s.18 of the Sentencing Act 1991, that the applicant had already served 186 days of the sentence which he had imposed.

The applicant admitted a number of previous convictions including convictions for possession of a drug of dependence in 1986, in respect of which he was sentenced to six months’ imprisonment, and two counts of trafficking in heroin in February 1993, for which the applicant was sentenced to ten years’ imprisonment with a non-parole period of eight years.

In December 2001 the applicant leased premises at 9 Poplar Street, Box Hill (“the Box Hill premises”) telling the landlord that he was arranging accommodation for his niece, Leigh Danielle Clayton, to enable her to attend the nearby TAFE college. In fact, Ms Clayton was the applicant’s girlfriend. At all material times the applicant and Ms Clayton lived at the Box Hill premises from which they sold, as part of a joint enterprise, cannabis to numerous people who attended there for that purpose. During the period in question, the applicant also sold heroin. As will be explained, the Crown did not allege that the heroin sales by the applicant were part of…

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 Komljenovic

Details

AGLC: R v Komljenovic [2006] VSCA 136
Case: [2006] VSCA 136
Decision Date: 30 June 2006

CaseChat Overview and Summary

In the matter of R v Komljenovic, the accused was convicted of multiple drug trafficking offences, including regular and continuous trafficking in heroin, possession of a prohibited drug, and possession of a prohibited drug with intent to supply. The case was heard by the Court of Appeal, which considered two main issues: the adequacy of the direction given to the jury and the sufficiency of the evidence to establish the accused's involvement in regular or continuous trafficking in heroin. The second issue also involved the court's consideration of evidence of consciousness of guilt and whether a statement made by the accused could be regarded as a lie. The appeal against conviction was dismissed by the Court of Appeal.

The primary legal issue before the court was whether the trial judge's direction to the jury was adequate in relation to the evidence of consciousness of guilt and whether the evidence was sufficient to establish that the accused was involved in regular or continuous trafficking in heroin. The court considered whether the evidence of trafficking in other drugs could provide context to the accused's involvement in heroin trafficking and whether the evidence was sufficient to establish the accused's consciousness of guilt. The court also examined whether the statement made by the accused could be regarded as a lie and whether this was relevant to the accused's involvement in drug trafficking.

The Court of Appeal held that the trial judge's direction to the jury was adequate and that the evidence was sufficient to establish the accused's involvement in regular or continuous trafficking in heroin. The court found that the evidence of trafficking in other drugs provided context to the accused's involvement in heroin trafficking and that the evidence was sufficient to establish the accused's consciousness of guilt. The court held that the statement made by the accused could be regarded as a lie and that this was relevant to the accused's involvement in drug trafficking. The appeal against conviction was dismissed.

The Court of Appeal also considered the accused's appeal against sentence, which was dismissed. The court found that the sentence imposed by the trial judge was not manifestly excessive and that the principles of parity were not breached. The court held that the sentence was appropriate in the circumstances of the case.

Orders