Samac v The Queen

[2011] VSCA 171

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2009 0999 

TOMISLAV SAMAC
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY and WEINBERG JJA and HARGRAVE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 May 2011
DATE OF JUDGMENT:	17 June 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 171
JUDGMENT APPEALED FROM:	(Unreported, County Court of Victoria, Judge Howard, 6 November 2009)

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CRIMINAL LAW –Application for leave to appeal against total effective sentence of 19 years imprisonment with non-parole of 14 years – Multiple counts of drug trafficking, including one count of trafficking a large commercial quantity of MDMA – Two counts of being a prohibited person, possessing an unregistered firearm – Whether sentencing judge erred in his assessment of applicant’s prospects of rehabilitation – Whether insufficient weight given to principle of totality – Whether sentence manifestly excessive – Applicant’s drug usage – Steps towards rehabilitation within period of delay – Sentences for trafficking a large commercial quantity of MDMA and directions for cumulation manifestly excessive – Totality principle infringed – Leave granted – Appeal allowed – Appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P F Tehan QC	Defteros Lawyers
For the Crown	Mr S M Cooper	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

1. On 23 June 2009, Tomislav Samac pleaded guilty in the County Court to a total five offences on two presentments (conveniently, ‘presentment 1’ and ‘presentment 2’).  On 6 November that year sentence was imposed.  The offences and the sentences were as follows:

Presentment 1, Count 1	Traffic a large commercial quantity of MDMA between 11 August 2005 and 6 October 2005	15 years’ imprisonment	Base sentence
Count 2	Traffick methylamphetamine between 11 August 2005 and 6 October 2005	3 years’ imprisonment	Cumulate 6 months
Count 3	Traffic methylamphetamine between 6 December 2005 and 18 January 2006	4 years’ imprisonment	Cumulate 12 months
Presentment 2, Count 1	Being a prohibited person, possess an unregistered firearm on 6 October 2005	12 months’ imprisonment	Cumulate 6 months
Count 2	Being a prohibited person, possess an unregistered firearm on 18 January 2006	4 years’ imprisonment	Cumulate 2 years

1. The total effective sentence was thus 19 years’ imprisonment.

1. The judge fixed a non-parole period of 14 years.

1. His Honour stated, pursuant to s 6AAA of the Sentencing Act, that had the applicant been convicted after trial he would have imposed a total effective sentence of 23 years’ imprisonment with a non-parole period of 18 years.

Grounds of appeal

1. The applicant seeks leave to appeal against sentence.  His counsel relied upon these grounds:

1.The learned sentencing judge erred in his assessment of the applicant’s prospects for rehabilitation.

2.His Honour erred in failing to give sufficient weight to the principle of totality.

…

5.The individual sentences, total effective sentence and non-parole period are manifestly excessive.

Circumstances

1. The applicant was sentenced as

One of the ‘Mr Bigs’ of the drug trade, having conducted a sophisticated, wholesale business in that insidious trade between August and October 2005 … undeterred…