R v Mulovski - [2001] VSCA 244

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 71 of 2001

THE QUEEN
	v.
LUPCHO MULOVSKI

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JUDGES:	CHARLES, CALLAWAY and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 November 2001
DATE OF JUDGMENT:	21 December 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 244

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Criminal law – Sentencing – Trafficking in heroin – Parity – Plea of guilty – Applicant re-sentenced to six years' imprisonment with non-parole period of four 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 Applicant	Mr P.F. Tehan, Q.C.	Patrick W. Dwyer

CHARLES, J.A.:

I agree with Callaway, J.A.

CALLAWAY, J.A.:

The applicant, who is now aged 38, pleaded guilty in the County Court to one count of trafficking in heroin between 24th September and 17th November 1999. A co-offender, Levi Richard Carmody, pleaded not guilty to that count. Carmody pleaded guilty to additional counts of possessing methylamphetamine and cannabis with an admission that such possession was for the purpose of trafficking in those substances. The applicant admitted 19 previous convictions from six court appearances, five of them being in 1981 and the last in 1987. After hearing pleas for leniency on their behalf, the learned judge sentenced the applicant to seven years' imprisonment with a non-parole period of five years. His Honour sentenced Carmody to four years' imprisonment on the count of trafficking in heroin and to concurrent sentences of 18 months' imprisonment on each of the other two counts. He fixed a non-parole period in Carmody’s case of two-and-a-half years.

The applicant was refused leave to appeal by a single judge on 15th June 2001 but has elected to have his application determined by the Court. He seeks leave to appeal on four grounds: first, that the sentence is manifestly excessive; secondly, that the learned judge imposed a disparate sentence relative to that imposed on Carmody; thirdly, that his Honour erred in failing to place any, or any sufficient, weight on the applicant’s plea of guilty; and, fourthly, that he erred in failing to place any, or any sufficient, weight on the applicant’s prospects of rehabilitation.

During the period pleaded on the presentment the police intercepted approximately 3,000 telephone calls, an analysis of which revealed 190 sales and purchases of heroin by the applicant apart from transactions involving Carmody. There were, in addition, approximately 50 sales and purchases relating to both men. The intercepts thus disclosed a total of approximately 240 sales and purchases of

heroin during the relevant period, in addition to transactions involving a covert operative “Cathy Ashbrook”. The total quantity of white powder containing heroin purchased by her from the applicant during the period was 18.8 grams for a total of $5,900. The summary of evidence prepared by the Crown speaks volumes for the intensity of the operation in which the applicant was engaged. An edited version of the relevant part of the summary appears as a schedule to these reasons.

Mr Tehan argued ground 2 first. 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 Mulovski

Details

AGLC: R v Mulovski [2001] VSCA 244
Case: [2001] VSCA 244
Decision Date: 21 December 2001

CaseChat Overview and Summary

The case of R v Mulovski involved the defendant, Mulovski, who was convicted of trafficking in heroin. Mulovski had pleaded guilty to the charge, and the case proceeded to sentencing. The court was tasked with determining an appropriate sentence, taking into account the gravity of the offence and the need for parity in sentencing. The original sentence imposed was eight years' imprisonment with a non-parole period of five years and six months. Mulovski subsequently applied for a re-sentencing hearing, arguing that the initial sentence was manifestly excessive. The court was required to weigh the arguments presented and determine whether the initial sentence should be altered.

The legal issues before the court centred on the principles of sentencing, particularly the need for parity in sentencing and the gravity of the offence. The court had to consider whether the initial sentence was manifestly excessive and whether it was appropriate to reduce the sentence to achieve parity with similar cases. The court also had to consider the impact of the plea of guilty on the sentencing process and the appropriate non-parole period for the offence.

The court found that the initial sentence was indeed manifestly excessive and that the appropriate sentence should reflect parity with similar cases. The court acknowledged the gravity of the offence but determined that the initial sentence did not adequately balance the need for punishment and deterrence with the principles of proportionality and parity. The court re-sentenced Mulovski to six years' imprisonment with a non-parole period of four years, reflecting the appropriate balance between these considerations. The court also noted the importance of the plea of guilty in reducing the sentence but emphasised that it was not the sole factor in determining the appropriate sentence. The court's decision was based on a comprehensive analysis of the principles of sentencing and the specific circumstances of the case.

Mulovski was re-sentenced to six years' imprisonment with a non-parole period of four years. The court's decision emphasised the need for parity in sentencing and the importance of balancing the principles of punishment, deterrence, and proportionality. The court's re-sentencing achieved an appropriate balance between these considerations and reflected the gravity of the offence while ensuring that the sentence was proportionate and consistent with similar cases.

Orders