R v Stamatov

Case [2017] QCA 158

SUPREME COURT OF QUEENSLAND

CITATION:

R v Stamatov [2017] QCA 158

PARTIES:

R
v
STAMATOV, Alexander
(applicant)

FILE NO/S:

CA No 110 of 2017
SC No 5 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Rockhampton – Date of Sentence: 22 May 2017

DELIVERED ON:

28 July 2017

DELIVERED AT:

Brisbane

HEARING DATE:

12 July 2017

JUDGES:

Gotterson JA and Atkinson and Applegarth JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Leave to appeal against sentence granted.

2.   The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – RELATIVE HARM OF DRUGS – where the applicant was convicted of trafficking in dangerous drugs, mainly steroids – where he submitted that a distinction should be made between steroids and other dangerous drugs, such as methamphetamine, in Schedule 1 of the Drugs Misuse Act 1986 (Qld) – where the sentencing judge concluded he was not permitted to make such a distinction – whether it is permissible to distinguish between the harmfulness of steroids and other Schedule 1 drugs, particularly methamphetamine, for the purpose of sentencing for the offence of trafficking

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – whether the sentencing judge determined that “exceptional circumstances” had to be shown before a sentence not involving actual imprisonment could be imposed for trafficking in a Schedule 1 drug – whether determining that “exceptional circumstances” had to be shown fettered the sentencing discretion

Drugs Misuse Act 1986 (Qld), s 5
Penalties and Sentences Act 1992 (Qld)
Serious and Organised CrimeLegislation Amendment Act 2016 (Qld)

Adams v The Queen (2008) 234 CLR 143; [2008] HCA 15, considered
Aytugrul v The Queen (2012) 247 CLR 170; [2012] HCA 15, cited
Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46, cited
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, cited
R v Bradforth[2003] QCA 183, cited
R v Dowel; Ex parte Attorney-General (Qld)[2013] QCA 8, cited
R v Hooper; ex parte Cth DPP[2008] QCA 308, cited
R v Pidoto and O’Dea (2006) 14 VR 269; [2006] VSCA 185, discussed
R v Ritzau[2017] QCA 17, explained
Reynolds v Wilkinson (1948) 51 WALR 17; [1948] WALawRp 1, cited
WesternAustralia v Higgins (2008) 200 A Crim R 302; [2008] WASCA 157, cited
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited

COUNSEL:

B J Power for the applicant
C W Heaton QC for the respondent

SOLICITORS:

Fisher Dore Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. GOTTERSON JA:  I agree with the orders proposed by Applegarth J and with the reasons given by his Honour.

  2. ATKINSON J:  I agree with the orders proposed by Applegarth J and with his Honour’s…

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Details
AGLC
R v Stamatov [2017] QCA 158
Case
[2017] QCA 158
Decision Date

CaseChat Overview and Summary

The applicant, Stamatov, appealed against his sentence for trafficking in dangerous drugs, specifically steroids, arguing that the sentencing judge incorrectly assessed the relative harm of steroids compared to other Schedule 1 drugs like methamphetamine. He contended that the judge erred in concluding that a distinction could not be made between the harmfulness of steroids and other drugs when determining an appropriate sentence. The appeal raised the question of whether the sentencing judge had correctly applied the principles governing the sentencing of drug trafficking offences.

The court considered whether it was appropriate to distinguish between the harmfulness of steroids and other Schedule 1 drugs for sentencing purposes and whether the sentencing judge correctly interpreted the requirement for "exceptional circumstances" to justify a non-custodial sentence. The applicant argued that the sentencing judge had erred by determining that exceptional circumstances had to be shown before a sentence not involving actual imprisonment could be imposed for trafficking in a Schedule 1 drug. The court examined whether this interpretation fettered the sentencing discretion.

The court found that the sentencing judge had indeed erred in concluding that a distinction between the harmfulness of steroids and other Schedule 1 drugs could not be made for sentencing purposes. However, the court held that this error was not sufficient to interfere with the sentence imposed. The applicant's argument that the judge had incorrectly applied the "exceptional circumstances" test was also rejected. The court determined that the sentencing judge had not erred in law and that the sentence imposed was appropriate in all the circumstances.

The court granted leave to appeal against the sentence but dismissed the appeal. The court found that the sentencing judge's error in law did not warrant interference with the sentence imposed, as the judge had ultimately considered all relevant factors in determining the appropriate sentence. The court emphasised the importance of correctly applying the law in sentencing but concluded that in this case, the error did not lead to an unjust outcome.

Orders

Orders of the court

1. Leave to appeal against sentence granted.

2. The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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