R v Stamenkovic

[2009] VSCA 185

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 910 of 2008

THE QUEEN

v

DRAGAN STAMENKOVIC

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JUDGES:	BUCHANAN JA, BONGIORNO and LASRY AJJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 July 2009
DATE OF JUDGMENT:	28 July 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 185
JUDGMENT APPEALED FROM:	R v Stamenkovic (Unreported, County Court, Judge Taft, 7 November 2008)

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CRIMINAL LAW — Sentencing — Settled presentment — Pleas of guilty to three drug offences — Trafficking and possession of different parcels — Alleged double punishment — s. 51, Interpretation of Legislation Act 1984

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APPEARANCES:	Counsel	Solicitors
For the applicant	Mr. M. Kowalski	Balot Reilly
For the respondent	Ms. G. T. Cannon	Mr. C. Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

1. I will ask Justice Bongiorno to deliver the first judgment.

BONGIORNO AJA:

1. Dragan Stamenkovic pleaded guilty on 7 November 2008 in the County Court to one count of trafficking in a drug of dependence (methyl-amphetamine), contrary to s. 71AC of the Drugs, Poisons and Controlled Substances Act 1981, two counts of possession of the same drug, contrary to s. 73(1) of the same Act, and five charges of dealing with property suspected of being the proceeds of crime, contrary to s. 195 of the Crimes Act 1958 (uplifted from the Magistrates’ Court pursuant to s. 359AA of that Act).  The trafficking count carries a maximum of 15 years’ imprisonment, the possession counts each carry five years, and the summary offences each carry a maximum of two years’ imprisonment.

1. The sentencing judge imposed a sentence of 18 months in respect of count 1, three months in respect of counts 2 and 3, and one month in respect of each of the five summary offences.  By cumulating one month of each of the sentences on counts 2 and 3 with that on count 1 and making all the sentences on the summary offences concurrent, a total effective sentence of 20 months was arrived at.  His Honour fixed a non-parole period of 12 months.

1. The events giving rise to these offences occurred on 27 February 2007.  On that date the applicant was arrested by police in Carlton whilst in possession of a trafficable quantity of methyl-amphetamine:  24.2 grams of 30 per cent pure methyl-amphetamine, being the drug referred to in count 1.  This drug was found in a ‘Glad’ brand snap-lock bag within a carry bag in a motel room of which he was the occupier.  In the same place another snap-lock bag was found containing 1.3 grams of 30 per cent methyl-amphetamine, the possession of which constituted count 2.  Count 3 related to a further quantity, 0.2 grams of methyl-amphetamine of 25 per cent purity, found with some digital scales, also in the applicant’s possession.  The proceeds of crime charges related to money and other items of property found in his possession at the same time.

1. The applicant has a long history of poly-substance abuse and an extensive criminal record, having amassed some 65 convictions, many of them for drug offences, but also for violence, possession of weapons, theft, and one of being an accessory to murder.

1. The applicant has complained to this Court that the sentencing judge erred in law by not making the sentences on counts 2 and 3 totally concurrent with the sentence on count 1. By imposing effective gaol terms in respect of counts 2 and 3, the sentencing Court had, he submitted, subjected him to double punishment. He argued that his conviction for trafficking was based, not on any actual sale of the prohibited substance, but on his possession of a traffickable quantity which is, by virtue of s. 73(2) of the Drugs, Poisons and Controlled Substances Act 1981, prima facie evidence of trafficking.  Thus, so the argument goes, all the applicant has done is possess a prohibited substance but has received, as punishment, three sentences of actual imprisonment, the serving of each of which involves serving time in prison.  Thus, his counsel argued, he was subjected to double punishment.  The sentences on counts 2 and 3 ought to have been made concurrent with that on count 1 to avoid this result.

1. Although not cited by either counsel on this application[1], there have been a number of cases in this Court in which questions of double punishment for the same act have arisen.  They were determined in accordance with the principle relied upon by counsel for the applicant referred to in R v Hoar[2] that “. . . [it is] a practice, if not a rule of rule, that a person should not be twice punished for what is substantially the same act.”  In Victoria, the rule referred to in Hoar finds statutory expression in s. 51(1) of the Interpretation of Legislation Act 1984 which is discussed at length in Pearce v The Queen[3].  However, neither the rule itself (at common law or in its statutory form) nor the cases referred to assist the applicant here.

   [1]Except for R v Langdon [2004] VSCA 205 where Gillard AJA (with whom Batt and Eames JJA agreed) resolved a question of possible double punishment by the application of a practical test as to whether the acts performed by the person which constituted the offences for which he was to be punished were essentially the same.

   [2](1981) 148 CLR 32 at 38 per Gibbs CJ, Mason, Aickin and Brennan JJ.

   [3](1998) 194 CLR 610 particularly at 621 per McHugh, Hayne and Callinan JJ.

1. Two such cases are R v Mason[4] and R v Filipovic[5].  In each of those cases, the charges were of cultivation of a drug of dependence (cannabis) and trafficking in the same drug.  There was no evidence in either case of any act of trafficking; the Crown case relied upon the same acts of cultivation and the statutory presumption as to trafficking to establish each offence.

   [4][2006] VSCA 55.

   [5][2008] VSCA 14.

1. Although Mason initially pleaded not guilty to cultivation and trafficking, he changed his plea to guilty early in the trial.  On appeal to this Court, the Crown conceded that it had no evidence of trafficking other than the act of cultivation of the same cannabis which was the subject of the possession charge.  On the basis of that concession, this Court set aside the conviction for trafficking.  Even if the Crown’s concession was rightly made, that case is distinguishable on its facts from this case where the act of trafficking related to a different parcel of the prohibited substance from those upon which the acts of possession were based.

1. The facts in Filipovic were similar to those in Mason and, hence, distinguishable from those of this case.

1. The presentment to which the applicant pleaded guilty was, as his counsel properly conceded, a settled presentment.  It was drafted, it might be assumed, to reflect adequately the criminality of which the applicant was guilty and which he was prepared to admit.  It gave the sentencing judge adequate scope to impose appropriate sentences so as to reflect that criminality.  As part of the process of doing so he was obliged to, and did, consider questions of appropriate concurrency and cumulation.

1. By his pleas of guilty to each of the three counts on the settled presentment, the applicant admitted each of the elements of trafficking in a commercial quantity of the prohibited substance as well as each of the elements of both of the possession counts.  That is to say, he admitted actual trafficking as well as being in possession of two discrete parcels of the drug.  Thus there was an entirely appropriate basis for the laying of three separate counts by the Crown.  Had the Crown charged him with possession in respect of same parcels of the drug upon which the trafficking charge was based or had there been some artificial separation of amounts of methyl-amphetamine by investigators for the purpose of multiplying the charges which could be laid, the applicant may have had some legitimate basis for complaint.[6]  In the circumstances here, no such complaint can be made.  There is no double punishment involved.  Each offence was punished separately.

   [6]See Georgiou v The Queen [2009] VSCA 57.

1. No attack can be made either on the total effective sentence or on the non-parole period fixed by the sentencing judge.  Indeed, having regard to the applicant’s antecedents, his Honour treated him extremely leniently.

1. No error having been shown in the sentence imposed, I would dismiss this application.

BUCHANAN JA:

1. I agree.

LASRY AJA:

1. I also agree.

BUCHANAN JA:

1. The order of the Court will be:

   The application for leave to appeal against sentence is dismissed.

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