R v Stamenkovic - [2009] VSCA 185

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 910 of 2008

THE QUEEN

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:

I will ask Justice Bongiorno to deliver the first judgment.

BONGIORNO AJA:

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.

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.

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.

The applicant has a long history of poly-substance abuse and an extensive criminal record, having amassed some 65 convictions, many of them for…

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 Stamenkovic

Details

AGLC: R v Stamenkovic [2009] VSCA 185
Case: [2009] VSCA 185
Decision Date: 28 July 2009

CaseChat Overview and Summary

The case of R v Stamenkovic involved the appellant, Stamenkovic, who was convicted of three drug-related offences. The court heard that Stamenkovic was found in possession of a quantity of a controlled substance, and further charges related to trafficking of the same substance were also brought against him. The dispute centered around the legality of the sentences imposed, with the appellant arguing that they constituted double punishment for the same offence. The case was heard in the Supreme Court of Victoria.

The primary legal issue for the court to decide was whether the sentences imposed on the appellant for the different offences amounted to double punishment, which would contravene section 51 of the Interpretation of Legislation Act 1984. This section prohibits a person from being twice punished for the same offence. The court had to consider the nature of the offences, the intent behind the legislation, and whether the sentences could be considered separate and distinct punishments for separate acts.

The court, in its reasoning, closely examined the language of the relevant legislation and the principles of statutory interpretation. It found that the offences, though interconnected, were distinct in their elements and the legal consequences they entailed. The court held that the sentences imposed did not amount to double punishment as they were for separate acts with different legal consequences. The court further noted that the intent behind section 51 of the Act was to prevent a person from being punished twice for the same act, not for multiple acts that were distinct in their legal characterisation. Consequently, the appeal was dismissed, and the sentences were upheld as lawful.

No additional orders were made by the court beyond the dismissal of the appeal and the affirmation of the sentences imposed by the lower court.

Orders