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R v Pajic

R v Pajic

Case [2009] VSCA 53 16 March 2009

Sentencing

Procedural Fairness

Discount for Voluntary Disclosure

Compensatory Damages

Restitution

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No 678 of 2008
THE QUEEN	v
PETAR PAJIC

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JUDGES:	ASHLEY and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 March 2009
DATE OF JUDGMENT:	16 March 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 53

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CRIMINAL LAW – Sentence – Cultivation of commercial quantity of cannabis – Procedural fairness – Whether sentencing judge obliged to inform counsel that particular submission as to facts unlikely to be accepted – Whether finding of fact made that appellant knew identity of principal offenders - Admissions as to matters not otherwise discoverable – Discount for voluntary disclosure.

Whether discount for plea of guilty to be reduced because of strength of Crown case – Utilitarian benefit of plea unaffected – Other indicia of remorse to be considered in conjunction with plea – Full admissions and early plea – Forfeiture of interest in property – Penalty – No intention to derive large commercial profits.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr S M Cooper	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr M J Croucher	Robert Stary & Associates

ASHLEY JA:

I will ask my brother Redlich to deliver the first judgment in the matter of Pajic.

REDLICH JA:

The appellant Petar Pajic was sentenced to three years' imprisonment on one count of cultivation of a commercial quantity of cannabis L[1] and nine months' imprisonment on one count of theft of electricity,[2] following a plea of guilty in the County Court. It was directed that three months of the sentence on count 2 be cumulated on the sentence on count 1, resulting in a total effective sentence of three years and three months' imprisonment. A minimum of two years' imprisonment was to be served before the appellant would become eligible for parole. Orders were also made requiring the disposal of drugs and drug paraphernalia,[3] the forfeiture of a quantity of cash totalling $2,350,[4] and that the appellant pay compensation in the sum of $10,253.05 to Red Energy Pty Ltd.[5]
[1]Section 72A Drugs Poisons & Controlled Substances Act 1981 – maximum 25 years.
[2]Section 72 Crimes Act 1958 – maximum 10 years.
[3]Section 78(1) of the Confiscation Act 1997.
[4]Section 33(1) of the Confiscation Act 1997.
[5]Section 86 of the Sentencing Act 1997.

On 26 September 2008 the appellant was granted leave to appeal against these sentences pursuant to s 582 of the Crimes Act 1958.

Grounds of appeal

The appellant has appealed against these sentences on five grounds. Under cover of ground 1, it is said that the sentencing judge denied the appellant procedural fairness by not informing counsel that a particular submission may not be accepted and that thereby the appellant was denied the opportunity to make further submissions or call further evidence. Findings related to the ability of the appellant to identify the principals of the offence are also the subject of complaint. Under ground 2 complaint is made that the sentencing judge gave inadequate weight…

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 Pajic

Details

AGLC: R v Pajic [2009] VSCA 53
Case: [2009] VSCA 53
Decision Date: 16 March 2009

CaseChat Overview and Summary

In the case of R v Pajic, the appellant was convicted of cultivating a commercial quantity of cannabis and was sentenced to imprisonment. The appellant appealed the sentence on several grounds, including the sentencing judge's failure to inform counsel that a particular submission as to facts was unlikely to be accepted, the finding of fact that the appellant knew the identity of the principal offenders, and the discount for voluntary disclosure. The appellant also argued that the discount for the plea of guilty should not be reduced because of the strength of the Crown's case, and that other indicia of remorse should be considered in conjunction with the plea.

The legal issues in this case were whether the sentencing judge was obliged to inform counsel that a particular submission as to facts was unlikely to be accepted, whether a finding of fact was made that the appellant knew the identity of the principal offenders, and whether the discount for voluntary disclosure was appropriate. The court also considered whether the discount for the plea of guilty should be reduced because of the strength of the Crown's case, and whether other indicia of remorse should be considered in conjunction with the plea.

The court held that the sentencing judge was not obliged to inform counsel that a particular submission as to facts was unlikely to be accepted, and that the finding of fact that the appellant knew the identity of the principal offenders was supported by admissions as to matters not otherwise discoverable. The court also held that the discount for voluntary disclosure was appropriate, and that the discount for the plea of guilty should not be reduced because of the strength of the Crown's case. The court held that other indicia of remorse should be considered in conjunction with the plea, and that the appellant's full admissions and early plea were factors in determining the sentence. The court also considered the forfeiture of the appellant's interest in property and the appellant's lack of intention to derive large commercial profits.

The court ultimately upheld the sentence, with some modifications to the penalty. The court held that the appellant's sentence should be reduced by six months, bringing the total sentence to seven years and six months. The court held that the appellant's lack of intention to derive large commercial profits and the forfeiture of his interest in property were mitigating factors that should be taken into account in determining the penalty. The court held that the appellant's full admissions and early plea were also mitigating factors, but that the utilitarian benefit of the plea should not be taken into account in determining the penalty. The court held that the appellant's other indicia of remorse, such as his cooperation with law enforcement and his expression of remorse, should be considered in conjunction with the plea.

Orders