R v Stantchev - [2002] VSCA 178

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 316 of 2001

THE QUEEN
	v.
NADKA STANTCHEV

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JUDGES:	WINNEKE, P., CHERNOV, J.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 October 2002
DATE OF JUDGMENT:	8 November 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 178

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CRIMINAL LAW - Sentencing - Trafficking in two drugs of dependence (heroin and methylamphetamine) - Possession of drugs of dependence (cannabis and morphine) - Conspiracy to handle stolen goods - Further offending of the same kind whilst on bail - Whether individual sentences, cumulation order and non-parole period manifestly excessive - Sentences of four years for two counts of trafficking and for handling and a cumulation order producing a total effective sentence of six years not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr M.J. Croucher	David Tonkin & Associates

WINNEKE, P.:

I agree with O'Bryan, A.J.A.

CHERNOV, J.A.:

I also agree with O'Bryan, A.J.A.

O'BRYAN, A.J.A.:

This appeal is concerned with sentences imposed upon the appellant in the County Court on 18 December 2001 for offences of possession of a drug of dependence, namely cannabis and morphine (counts 1 and 2), trafficking in a drug of dependence, namely heroin and methylamphetamine (counts 3 and 4) and conspiracy to handle stolen goods (count 5). The appellant who is now aged 53 was sentenced to be imprisoned on each of counts 1 and 2 to three months' imprisonment and on each of counts 3, 4 and 5 to four years' imprisonment. A cumulation order was made that 12 months of the sentences on counts 4 and 5 should be served cumulatively on each other and on count 3. The total effective sentence was six years and four years was fixed as the minimum term before the appellant could become eligible for parole.

The appellant had a relevant criminal history. Between 1986 and 1999 she was convicted of 11 offences from five court appearances. Those offences included trafficking in heroin, cultivating and possessing cannabis, and handling stolen goods (two charges).

The possession counts carried a maximum penalty of five years' imprisonment and/or a fine of $40,000. The trafficking counts carried a maximum penalty of 15 years' imprisonment. The conspiracy count also carried a maximum penalty of 15 years' imprisonment.

The initial ground of appeal was:

"That in all the circumstances the sentence imposed was manifestly excessive."

By leave granted by the Registrar, three further grounds were added:

"2.The sentences on counts 3, 4 and 5, the total effective sentence and the non-parole period are manifestly excessive.
3.The learned sentencing judge erred in imposing the same sentences upon counts 3, 4 and 5.
4.The learned sentencing judge erred -
(a)in ordering cumulation, or as [to] the extent of cumulation ordered among counts 3, 4 and 5;
(b)in imposing a total effective sentence and a non-parole period that infringe totality."

Leave was granted to the appellant to appeal the sentence on 5…

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 Stantchev

Details

AGLC: R v Stantchev [2002] VSCA 178
Case: [2002] VSCA 178
Decision Date: 8 November 2002

CaseChat Overview and Summary

The court dealt with the sentencing of the appellant, who had been found guilty of trafficking in heroin and methylamphetamine, possessing cannabis and morphine, conspiring to handle stolen goods, and committing similar offences while on bail. The appellant argued that the individual sentences, the cumulation order, and the non-parole period were manifestly excessive. The primary legal issues were whether the sentencing judge erred in the calculation of the cumulative sentence and whether the non-parole period was excessive.

The court considered that the sentencing judge had correctly assessed the totality of the offending, including the gravity of the drug trafficking offences and the appellant's disregard for the law by committing further offences while on bail. The court found that the individual sentences were appropriate given the nature and extent of the offending. The cumulative sentence, which resulted in a total effective sentence of six years, was not considered manifestly excessive, taking into account the seriousness of the offences and the need to deter the appellant and others from engaging in similar conduct. The non-parole period was also deemed appropriate, balancing the need for punishment, deterrence, and the appellant's prospects for rehabilitation.

The court rejected the appellant's submission that the sentences were manifestly excessive and upheld the sentence imposed by the sentencing judge. The decision was that the appeal against sentence was dismissed.

Orders