R v Majeric - [2001] VSCA 15

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 207 of 1999

THE QUEEN

ANTON MAJERIC

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JUDGES:	CALLAWAY, BUCHANAN and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 February 2001
DATE OF JUDGMENT:	9 March 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 15

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CRIMINAL LAW – Sentencing – Importation of very large amount of heroin – Operation of s.16G Crimes Act 1914 (Cth) – Adjustment to sentence made in context of instinctive synthesis – Manifest excess – Comparison with sentences imposed in other cases – Parity – Difference in roles of applicant and co-offenders – Whether sufficient weight given to applicant’s plea of guilty and co-operation with police – Head sentence of 21 years’ imprisonment neither manifestly excessive nor manifestly disparate.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.R. Champion	The Commonwealth Director of Public Prosecutions
For the Applicant	Mr. P.F. Tehan, Q.C.	Mulcahy Mendelson & Round

CALLAWAY, J.A.:

I have had the advantage of reading in draft the reasons for judgment prepared by my brother Chernov. I agree in them. There is only one point I wish to add.

The authorities on s.16G of the Crimes Act 1914 say, on the one hand, that it is necessary in each case to make an individual judgment of what should be done by way of the adjustment provided for by that section but, on the other hand, that it is not inappropriate to take into account that the reduction for remissions and the like is ordinarily about one-third of the sentence. That is not a fixed ratio but "an appropriate starting point".[1] Although the question need not formally be decided in the present case, I am disposed to think that the starting point is of less assistance the longer the sentence. If that were not so, a sentence of (say) 30 years' imprisonment would always meet with the criticism that it translated into a sentence of 45 years' imprisonment or equated to a life sentence or both. Moreover, as s.16G does not apply to a life sentence[2], such a "shading out" of the weight to be given to a mathematical calculation obviates an abrupt and anomalous difference between a determinate and a life sentence.[3] Mr Tehan's contentions would, in many cases, make a life sentence much easier to defend on appeal than a long determinate sentence.

BUCHANAN, J.A.:

[1]See, for example, Director of Public Prosecutions (Cth) v. El Karhani (1990) 21 N.S.W.L.R. 370 at 384-385; R. v. Li [1998] 1 V.R. 637 at 641-642 and R. v. Carey [1998] 4 V.R. 13 at 16-17.

[2]LeeVanit v. R. (1997) 190 C.L.R. 378.

[3]It does not involve the oxymoron of a nil adjustment: Lee Vanit v. R. passim but especially at 389 per McHugh, J.

I have had the benefit of reading in draft the reasons for judgment of Chernov, J.A. I agree that the application should be dismissed for the reasons stated by his Honour. I have also had the benefit of reading the draft reasons for…

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 Majeric

Details

AGLC: R v Majeric [2001] VSCA 15
Case: [2001] VSCA 15
Decision Date: 9 March 2001

CaseChat Overview and Summary

The case of R v Majeric involved the defendant, who was charged with the importation of a very large amount of heroin. The matter was heard in the High Court of Australia, where the primary focus was on the sentencing of the defendant under section 16G of the Crimes Act 1914. The court was tasked with determining whether the sentence imposed was appropriate and whether there was a manifest excess or disparity when compared with sentences in similar cases.

The legal issues that the court had to address included whether the sentence was manifestly excessive, whether there was a manifest disparity when compared with other cases, and whether sufficient weight had been given to the defendant's plea of guilty and cooperation with the police. The court had to carefully balance these factors while also considering the defendant's role in the offence compared to his co-offenders. The High Court examined the operation of section 16G, which provides for the imposition of a sentence for serious drug offences, and assessed whether the head sentence of 21 years’ imprisonment was justified.

In its reasoning, the court held that the sentence was not manifestly excessive nor manifestly disparate when compared to sentences in other cases. It found that the primary judge had correctly applied the principles of instinctive synthesis in determining the appropriate sentence. The court emphasised that the differences in roles between the defendant and his co-offenders, as well as the defendant’s plea of guilty and cooperation with the police, were properly considered. The court concluded that the head sentence of 21 years’ imprisonment was neither manifestly excessive nor manifestly disparate when assessed in the context of the principles of parity and the individual circumstances of the case.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence of 21 years’ imprisonment was upheld. The High Court affirmed the decision of the lower court, finding that the sentence was appropriate and did not constitute a manifest excess or disparity.

Orders