R v Rekhviashvili - [2010] VSCA 3

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 575 of 2009

THE QUEEN
	v
REYN REKHVIASHVILI

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JUDGES	NEAVE and BONGIORNO JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	27 January 2010
DATE OF JUDGMENT	29 January 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 3 1^st Revision, 1 February 2010
JUDGMENT APPEALED FROM	R v Rekhviashvili (Unreported, County Court of Victoria, Judge Gullaci, 27 March 2009)

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CRIMINAL LAW – Sentence – Appeal – Appellant pleaded guilty to trafficking and possessing drugs of dependence and to possessing a prohibited firearm – Whether definition of ‘mixture’ includes mixed substances containing drugs found in separate containers – Appropriate weight given to low levels of purity of substances – Cumulation of sentences not excessive – Total effective sentence and non-parole period not manifestly excessive – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr C Boyce	Grigor Lawyers

NEAVE JA
BONGIORNO JA:

On 20 March 2009 the appellant, Reyn Rekhviashvili, pleaded guilty to one count of being a prohibited person in possession of an unregistered firearm, two counts of trafficking in a drug of dependence and two counts of possessing a drug of dependence. After hearing a plea in mitigation of sentence, the learned trial judge sentenced the appellant on 27 March 2009 as follows:

Count

Offence

Term/fine

Cumulation

1

Possessing an unregistered firearm[1]

18 months’ imprisonment

Base sentence

2

Trafficking in a drug of dependence (methylamphetamine)[2]

15 months’ imprisonment

9 months

3

Trafficking in a drug of dependence (amphetamine)[3]

15 months’ imprisonment

2 months

4

Possessing a drug of dependence (diacetylmorphine)[4]

$1,000

5

Possessing a drug of dependence (cocaine)[5]

$1,000

[1]Firearms Act 1996, s 5(1A).
[2]Drugs, Poisons and Controlled Substances Act 1981 (‘Drugs Act’), s 71AC.
[3]Ibid.
[4]Ibid s 73(1).
[5]Ibid.

The orders for cumulation made by his Honour resulted in a total effective sentence of 2 years and 5 months’ imprisonment. His Honour fixed a non-parole period of 18 months’ imprisonment.

The appellant now appeals against that sentence.

Circumstances of the offending

On 7 June 2007 police located a stolen car in the car park of an apartment block in Prahran. The car, which belonged to a car rental company, had been hired with the appellant’s credit card and had not been returned. Police interviewed the manager of the apartment block and were informed that the appellant was in possession of the car and had just entered one of the apartments. After entering the apartment, they discovered the appellant in a bedroom with another male. The appellant and his companion were seated on a bed and had next to them two rolled up bundles of cash amounting to $3,515.25. Underneath a pillow on the bed was a travel bag, out of which a handgun was protruding. The appellant admitted to police that the bag belonged to him.

The gun, a .25 millimetre automatic pistol, was not registered in Victoria. It was loaded with…

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 Rekhviashvili

Details

AGLC: R v Rekhviashvili [2010] VSCA 3
Case: [2010] VSCA 3
Decision Date: 29 January 2010

CaseChat Overview and Summary

In the case of R v Rekhviashvili, the appellant was found guilty of drug trafficking, possession of drugs of dependence, and possession of a prohibited firearm. The matter was appealed to the court which considered the appropriateness of the sentences imposed. The central issues involved the interpretation of the term'mixture' in relation to mixed substances found in separate containers and the appropriateness of the sentence, including the cumulative effect of the penalties and the non-parole period.

The court examined whether the definition of 'mixture' under the relevant statute includes substances found in separate containers and whether the low levels of purity of the substances warranted a particular consideration. It was also necessary to determine if the cumulative sentences and the non-parole period were excessively punitive. The court assessed the arguments and concluded that the term'mixture' could encompass substances in separate containers under the given circumstances. The low purity of the substances was considered in sentencing, and the cumulative effect of the sentences and the non-parole period were deemed appropriate.

Ultimately, the court found that the sentences imposed were neither excessive nor manifestly disproportionate to the crimes committed. The appeal was dismissed as the total effective sentence and non-parole period were deemed to be within reasonable bounds given the nature and circumstances of the offences.

Orders