R v Malceski - [2004] VSCA 138

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 339 of 2003

THE QUEEN

ITSE MALCESKI

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JUDGES:	WINNEKE, P., CALLAWAY and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 August 2004
DATE OF JUDGMENT:	5 August 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 138

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Criminal law – Sentence - Trafficking in pseudoephedrine - Early guilty plea - Assistance to authorities - Informer's discount - Disparity with sentence imposed on co-offender - Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.G. Hillman, S.C.	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr L.C. Carter	Hale & Wakeling

WINNEKE, P.:

I will invite Buchanan, J.A. to give the first judgment in this matter.

BUCHANAN, J.A.:

On 30 May 2003 the appellant was arraigned and pleaded guilty to a presentment containing one count that between 1 December 2001 and 18 April 2002 he trafficked in a drug of dependence, namely, pseudoephedrine. After a plea he was sentenced to be imprisoned for a term of three years. The sentencing judge said there would be a non-parole period of 18 months and ordered that 12 months of the sentence be served cumulatively upon a term of imprisonment the appellant was then undergoing.

There are a number of grounds of appeal. For present purposes it is necessary to refer to only one, that the sentencing judge erred by recording on the return of prisoners a non-parole period of two years, after announcing a non-parole period of 18 months when passing sentence in court. The respondent concedes that the error vitiates the sentence. Accordingly, this Court should proceed to re-sentence the appellant.

Although the count in the presentment was framed as a Giretti count, the Crown alleged but two transactions. In late 2001 the appellant was introduced to one Ali Kheir, who, with his sons, manufactured and sold amphetamine. The appellant agreed to sell two kilograms of pseudoephedrine to Kheir at a price of $20,000. Pseudoephedrine is an ingredient used to manufacture amphetamine. The following day the appellant asked Kheir for money before he delivered the pseudoephedrine. Kheir took the appellant's car keys and refused to return his car until the appellant supplied the drug. Two days later the appellant supplied Kheir with one kilogram of pseudoephedrine. Kheir, however, refused to honour his promise to return the car. The appellant was unable to supply the balance of the drug, and on 21 December 2001 he was kidnapped by Kheir and others, who assaulted him over the course of a number of hours, before releasing him. Later the appellant supplied Kheir with more pseudoephedrine.

In June 2002 the appellant was arrested and interviewed by the police. He made no comment to the questions asked by the police. On 10 October 2002 the appellant provided a detailed statement to the police of his dealings with Kheir and subsequently gave evidence in the County Court when Kheir pleaded guilty to a charge of trafficking but asserted that the trafficking was limited to sharing the drugs…

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 Malceski

Details

AGLC: R v Malceski [2004] VSCA 138
Case: [2004] VSCA 138
Decision Date: 5 August 2004

CaseChat Overview and Summary

In the case of R v Malceski, the appellant was convicted of trafficking in pseudoephedrine, a precursor chemical used in the manufacture of methamphetamine, and was sentenced to imprisonment. The case came before the court on appeal against the sentence imposed. The appellant pleaded guilty early in the proceedings and provided significant assistance to the authorities, which led to the arrest of his co-offenders. The appellant argued that the sentence was excessive, particularly in comparison to the sentences imposed on his co-offenders, and that he should have received an informer's discount.

The central legal issues before the court were whether the sentence imposed was manifestly excessive and whether the appellant was entitled to an informer's discount. The court had to consider the principles of sentencing in the context of trafficking in precursor chemicals, the appellant's early guilty plea, his level of assistance to the authorities, and the disparity in sentencing between the appellant and his co-offenders. The court also had to assess whether the appellant qualified for an informer's discount under the relevant sentencing provisions.

The court found that the sentence imposed was manifestly excessive, taking into account the appellant's early guilty plea and his significant assistance to the authorities. The court noted the disparity in sentencing between the appellant and his co-offenders, which further supported the view that the sentence was disproportionate. Additionally, the court determined that the appellant was entitled to an informer's discount, as he had provided substantial assistance that led to the arrest of his co-offenders. As a result, the appeal against sentence was allowed, and the matter was remitted to the sentencing court for re-sentencing.

In light of the findings, the court ordered that the appeal against sentence be allowed, and the matter be remitted to the sentencing court for re-sentencing, taking into account the principles discussed.

Orders