R v Mihalo - [2002] VSCA 217

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No.314 of 2001
	v. NICOLAE MIHALO
THE QUEEN		No.315 of 2001
	v. MARIA MIHALO
THE QUEEN		No.6 of 2002
	v. THANH MINH VO

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JUDGES:	PHILLIPS, C.J., CHERNOV and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 December 2002
DATE OF JUDGMENT:	19 December 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 217

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Criminal law – Sentencing – Trafficking in amphetamines and heroin – Attempted trafficking in a drug of dependence contrary to s.71(1)(b) Drugs, Poisons and Controlled Substances Act 1981 – Disparity – Whether findings open to sentencing judge – Whether sentences manifestly excessive.

Statutes - Interpretation – Whether maximum penalty for attempted trafficking determined by s.71(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 or by s.321P and s.321R(1) of the Crimes Act 1958.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms Kerri Judd	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant N. Mihalo	Mr. S.A. Shirrefs	Stephen Andrianakis & Associates
For the Appellant M. Mihalo	Mr. C. Pearson	David Tonkin & Associates
For the Appellant T.M. Vo	Mr. M.J. Croucher	Haines & Polites

PHILLIPS, C.J.:

I have had the benefit of reading the judgment of Eames, J.A. in draft form. I concur in the conclusions his Honour has reached and I would subscribe to his reasons therefor.

CHERNOV, J.A.:

In my opinion, the appeal against sentence of each appellant should be dismissed for the reasons given by Eames, J.A.

EAMES, J.A.:

These are appeals against sentences imposed by a judge of the County Court on 19 December 2001. Leave to appeal has been granted in each case by a judge of this Court.

Maria Mihalo and Nicolae Mihalo pleaded guilty to three counts on the presentment being counts of trafficking in a drug of dependence, namely methylamphetamine (count 1), trafficking in a drug of dependence, namely heroin (count 2) and attempting to traffick in heroin (count 3). Thanh Minh Vo was presented on count 3 only and pleaded guilty to attempting to traffick heroin.

Maria and Nicolae Mihalo received identical sentences as follows;

Count 1, trafficking methylamphetamine   -       three years six months' imprisonment.
Count 2, trafficking heroin  -       six months' imprisonment.
Count 3, attempting to traffick in heroin     -       four years six months' imprisonment.

The learned sentencing judge ordered that two years six months of the sentence on count 3 be served cumulatively with the sentence imposed on count 1, producing a total effective sentence of six years' imprisonment. His Honour ordered that a period of four years' imprisonment be served before being eligible for parole. His

Honour declared pre-sentence detention in both cases of 335 days.

Thanh Minh Vo was sentenced to six years on count 3 for attempting to traffick heroin and a non-parole period of four years six months was fixed. A declaration was made as to 18 days' pre-sentence detention.

In the case of Maria Mihalo the grounds of appeal against sentence are as follows:

(1)That in all the circumstances 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 Mihalo

Details

AGLC: R v Mihalo [2002] VSCA 217
Case: [2002] VSCA 217
Decision Date: 19 December 2002

CaseChat Overview and Summary

The appellant, Mihalo, was found guilty of trafficking in amphetamines and heroin and of attempting to traffic in a drug of dependence under the Drugs, Poisons and Controlled Substances Act 1981. The case came before the court for sentencing, and Mihalo appealed against the severity of the sentences imposed. The appeal focused on whether the disparity in sentences was justified and whether the findings were open to the sentencing judge. Additionally, the appeal questioned whether the sentences were manifestly excessive.

The primary legal issues before the court were whether the maximum penalty for the attempted trafficking offence was determined by the specific provision in the Drugs, Poisons and Controlled Substances Act 1981 or by the general provisions in the Crimes Act 1958. The court had to consider the statutory interpretation of these provisions to ascertain the correct penalty range. Another significant issue was whether the sentencing judge had the discretion to find certain facts, and if the disparity in sentences was justified under the circumstances.

The court examined the statutory language of both the Drugs, Poisons and Controlled Substances Act 1981 and the Crimes Act 1958, concluding that the maximum penalty for the attempted trafficking offence was determined by the specific provision in the Drugs, Poisons and Controlled Substances Act. The court found that the sentencing judge had the authority to make certain findings, which were relevant to the disparity in sentences. The appeal against the severity of the sentences was dismissed, as the court held that the sentences were not manifestly excessive given the nature and circumstances of the offences.

The final orders of the court upheld the sentences imposed by the sentencing judge, affirming that the statutory interpretation and the discretion in making findings were correctly applied. The appeal was therefore dismissed.

Orders