Rajic v The Queen - [2011] VSCA 51

SUPREME COURT OF VICTORIA

COURT OF APPEAL

FRANK RAJIC	S APCR 2009 0960
FRANK RAJIC	Applicant
v
THE QUEEN	Respondent
THE QUEEN	S APCR 2009 0978 S APCR 2010 0451
PAUL JACK	Applicant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY and BONGIORNO JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 February 2011
DATE OF JUDGMENT:	3 March 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 51
JUDGMENT APPEALED FROM:	R v Bejjani & Ors (Unreported, County Court of Victoria, Judge Allen, 17 December 2009)

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CRIMINAL LAW – Conviction – Change of plea – Applicable principles – Application to permit notice of appeal against conviction to be filed out of time – Application refused.

CRIMINAL LAW – Sentencing – Fresh evidence – Relevance of Confiscation Act 1997 – Automatic forfeiture – Sentencing Act 1991, s 5(2A)(ab) – Application allowed in part.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Rajic	Mr N Papas SC with Mr M C Kowalski	C Marshall & Associates
For the Applicant Jack	The Applicant appeared in person
For the Crown	Mrs C Quin	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

I agree in the disposition of these matters as proposed by my brother Bongiorno and I agree with his reasons.

BONGIORNO JA:

This judgment concerns two applicants seeking leave to appeal their sentences, both of which were imposed by Judge Allen in the County Court on 17 December 2009. One of the applicants, Paul Jack, also sought leave to appeal his conviction out of time. Both of the applications were heard, together with two other applications, in this Court on 11 February 2011. Judgments were delivered, ex tempore, and orders made, on that day in respect of the other applications,[1] whilst judgment was reserved in those of Paul Jack and Frank Rajic. This is that judgment.
[1]Ramadan v The Queen; Boca v The Queen [2011] VSCA 50.

Rajic and Jack were arrested as part of a police operation known as ‘Operation Kearns’ which was conducted in the middle of 2006. It related to significant drug dealing concerned mainly with trafficking methylamphetamine (‘ice’). The participants were involved in different roles as described by Judge Allen in his sentencing remarks. They each received significant custodial sentences.

Frank Rajic

Frank Rajic pleaded guilty to one count of trafficking methylamphetamine (70 grams), one count of trafficking cannabis (203 grams) and one count of possession of cocaine (0.1 gram). He was sentenced to three years and six months’ imprisonment on the first count, six months on the second count and was fined $1,000 on the third count. His Honour cumulated three months of the six months imposed in respect of the second count on the three years and six months’ imposed on the first count thereby imposing a total effective sentence of three years, nine months. He fixed a non‑parole period of two years and three months.

The sentencing judge summarised Rajic’s offending as follows:

128.Mr Rajic, at the time you offended you were 33. You are currently 36 years of age. You have…

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 Rajic v The Queen

Details

AGLC: Rajic v The Queen [2011] VSCA 51
Case: [2011] VSCA 51
Decision Date: 3 March 2011

CaseChat Overview and Summary

In Rajic v The Queen, the respondent appealed against both conviction and sentence. The applicant, Mr Rajic, was convicted of various drug trafficking offences and sentenced to imprisonment. The appeal raised two primary issues: first, the validity of the conviction and the appropriateness of an out-of-time appeal notice, and second, the relevance of the Confiscation Act 1997 in sentencing and the application of the Sentencing Act 1991. The High Court was required to determine whether the notice of appeal against conviction could be filed out of time and whether the Confiscation Act 1997 should be considered in the sentencing process.

The court found that the principles governing an application for leave to appeal out of time were well-established. The court held that the applicant's application to permit notice of appeal against conviction to be filed out of time was refused. The court reasoned that there was no compelling reason to permit the application, and the application did not meet the criteria for exceptional circumstances. Regarding sentencing, the court found that the Confiscation Act 1997 was relevant to the sentencing process under the Sentencing Act 1991. The court held that the applicant's sentence should be reconsidered in light of the confiscation provisions, and the application was allowed in part.

The court ordered that the application to permit the notice of appeal against conviction to be filed out of time be refused. Additionally, the court ordered that the applicant's sentence be reconsidered in accordance with the Sentencing Act 1991, taking into account the provisions of the Confiscation Act 1997. The court's decision highlighted the importance of adherence to legal timelines and the relevance of specific legislative provisions in sentencing decisions.

Orders