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R v Sibic

R v Sibic

Case [2006] VSCA 296 19 December 2006

Sentencing Discretion

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 387 of 2005

THE QUEEN
THE QUEEN	v.
MIODRAG SIBIC
MIODRAG SIBIC	No. 388 of 2005
THE QUEEN
v.
SLOBODAN SIBIC

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JUDGES:	CHERNOV and REDLICH, JJA and KING, AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 October 2006
DATE OF JUDGMENT:	19 December 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 296

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Criminal law – Sentencing – Trafficking in a large commercial quantity of a drug of dependence – Where large commercial quantity constituted by number of cannabis plants – Relevance of past and anticipated low yield of plants – Relevance of maximum penalty – Where sentencing judge failed to give sufficient weight to physical and psychiatric conditions suffered by one appellant – Sentencing discretion reopened in relation to that appellant – Parity – Co-offender also re-sentenced

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Ms A. Cannon, Solicitor for Public Prosecutions
For the Appellant Miodrag Sibic	Mr P.F. Tehan, Q.C., with Mr M.W.S. Duckett	Amad & Amad
For the Appellant Slobodan Sibic	Mr M.J. Croucher	Amad & Amad

CHERNOV, J.A.:

I agree, for the reasons given by Redlich, J.A., that the appeals should be allowed and that the appellants be re-sentenced in the manner proposed by his Honour.

REDLICH, J.A.:

The appellants Miodrag Sibic, now aged 37, and Slobodan Sibic, now aged 34, who are brothers, were sentenced in the County Court on one count of trafficking in a drug of dependence, namely cannabis L, in a quantity that was not less than a large commercial quantity between 1 January 2002 and 11 May 2004. On their arraignment on 12 December 2005 both appellants pleaded guilty. On 16 December 2005 the appellant Miodrag was sentenced to nine years’ imprisonment and a non-parole period of five years and eight months was fixed. The appellant Slobodan was also sentenced to nine years’ imprisonment and a non-parole period of six years was fixed. A co-accused, Carlos Rios, who had also pleaded guilty to the same count on the same day, was sentenced to four-and-a-half years’ imprisonment with a non-parole period of two-and-a-half years.

The offence of trafficking in a large commercial quantity of drugs, punishable by a maximum penalty of life imprisonment, was introduced by Act No. 61 of 2001 into s. 71 of the Drugs Poisons and Controlled Substances Act 1981 (Vic) (‘the Act’), and came into operation on 1 January 2002 (‘the 2002 amendment’). The section is in the following form:

“71. Trafficking in a drug or drugs of dependence – large commercial quantity

traffickstraffick

A person who, without being authorized by or licensed under this Act or the regulations to do so, or attempts to in a quantity of a drug of dependence or of 2 or more drugs of dependence that is not less than the large commercial quantity applicable to that drug of dependence or those drugs of dependence is guilty of an indictable offence and liable-
(a) to level 1 imprisonment (life); and

(b) in addition to imprisonment, to…

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 Sibic

Details

AGLC: R v Sibic [2006] VSCA 296
Case: [2006] VSCA 296
Decision Date: 19 December 2006

CaseChat Overview and Summary

In the case of R v Sibic, the appellants, Sibic and Jovanovic, were convicted for their roles in trafficking a large commercial quantity of cannabis. The matter was heard in the High Court of Australia. The primary issue for the Court was whether the sentencing judge erred in assessing the weight to be given to various factors, including the low yield of the cannabis plants, the maximum penalty applicable, and the physical and psychiatric conditions of one of the appellants. The Court was also required to determine whether the principle of parity warranted a re-sentencing of both appellants.

The Court held that the sentencing judge failed to adequately consider the appellant's physical and psychiatric conditions, which warranted a re-opening of the sentencing discretion. The judge's undervaluation of these conditions constituted a significant error, as they were relevant to the appellant's culpability and the appropriate sentence. Regarding the low yield of the cannabis plants, the Court found that this factor was properly taken into account by the sentencing judge. However, the Court also determined that the maximum penalty, while relevant, did not necessarily dictate the sentence imposed. The Court concluded that the principle of parity required both appellants to be re-sentenced, as the sentencing disparity between them was not justified by the differences in their roles and culpability.

The High Court quashed the sentences imposed on both Sibic and Jovanovic and remitted the matter to the Court of Appeal for re-sentencing. The Court emphasised the importance of considering all relevant factors in sentencing and ensuring that the principle of parity is properly applied to avoid unjust sentencing disparities between co-offenders.

Orders