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Sazimanoska v The Queen

Sazimanoska v The Queen

Case [2020] VSCA 66 26 March 2020

Appeal

Sentencing

Trafficking in a drug of dependence (cannabis)

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0162

GEZIME SAZIMANOSKA	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 March 2020
DATE OF JUDGMENT:	26 March 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 66
JUDGMENT APPEALED FROM:	[2019] VCC 617 (Judge Trapnell)

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CRIMINAL LAW – Appeal – Sentence – Trafficking in a drug of dependence (cannabis) – Sentence of 2 years and 6 months’ imprisonment with non-parole period of 1 year and 3 months – Nine month delay between plea hearing and sentence – Whether sentencing judge erred in failing to take into account how applicant’s adjustment disorder related to delay –Whether sentencing judge erred in considering ss 5(2H) and 22 of Sentencing Act 1991 – Whether sentencing judge failed to take delay into account – Whether sentence manifestly excessive – No error made by sentencing judge – Sentence within range – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Ms C A Boston	Furstenberg Law
For the Respondent:	Ms M Mahady	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
WEINBERG JA:

The applicant pleaded guilty to having trafficked in cannabis in a commercial quantity, contrary to s 71AA of the Drugs, Poisons and Controlled Substances Act 1981. She was one of eight co-offenders, all of whom were charged on Indictment C1711393 with that same offence, albeit in some cases between different dates throughout several months in 2017. So far as the applicant is concerned, the period in question was between 21 June and 1 August of that year. Other offenders were alleged to have been engaged in trafficking for longer periods, between, for example, 13 April 2017 and 1 August 2017.

The applicant’s husband, Nejat Sazimanoski, was also a co-offender. He pleaded guilty to five indictable charges, including one of trafficking in a commercial quantity of cannabis, and two of negligently dealing with proceeds of crime. He was also dealt with for two charges of possessing an unregistered category E handgun. On 17 April 2018, he was sentenced to a total effective term of 5 years and 3 months’ imprisonment with a non-parole period of 2 years and 6 months. On 24 December 2019, he was released on parole.

On 3 May 2019, the applicant was sentenced as follows:

Charge No

Offence

Maximum

Sentence

7.
Trafficking in a commercial quantity of drug of dependence;

[s 71AA — Drugs, Poisons and Controlled SubstancesAct 1981]
25 years 2 years and 6 months’ imprisonment

Non-parole period:

15 months

(1) of the Sentencing Act 1991Pre-sentence detention declaration pursuant to s 18:

1 day

Section 6AAA Statement: 3 years and 6 months’ imprisonment with a non‑parole period of 2 years and 4 months.

Charge No	Offence	Maximum	Sentence
7.	Trafficking in a commercial quantity of drug of dependence; [s 71AA — Drugs, Poisons and Controlled SubstancesAct 1981]	25 years	2 years and 6 months’ imprisonment
Non-parole period:	15 months
(1) of the Sentencing Act 1991Pre-sentence detention declaration pursuant to s 18:	1 day
Section 6AAA Statement: 3 years and 6 months’ imprisonment with a non‑parole period of 2 years and 4 months.

The applicant now seeks leave to appeal against that sentence. She relies upon four grounds of appeal, which are as follows:

Ground 1:
The learned sentencing judge erred in failing to take into account that the applicant’s adjustment disorder…

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 Sazimanoska v The Queen

Details

AGLC: Sazimanoska v The Queen [2020] VSCA 66
Case: [2020] VSCA 66
Decision Date: 26 March 2020

CaseChat Overview and Summary

The appellant, Sazimanoska, sought leave to appeal against her sentence for trafficking in a drug of dependence. The case was heard in the High Court of Australia. The central issue was whether the sentencing judge erred in various respects concerning the delay between the plea hearing and sentencing, the appellant's adjustment disorder, and the consideration of certain provisions of the Sentencing Act 1991.

The appellant argued that the sentencing judge failed to adequately consider how her adjustment disorder, which was exacerbated by the delay in sentencing, related to the delay between the plea hearing and the imposition of sentence. She also contended that the judge erred in considering sections 5(2H) and 22 of the Sentencing Act 1991, and that the sentence was manifestly excessive. The appellant's central claim was that the delay in sentencing caused her significant emotional distress, which should have been taken into account in determining the sentence.

The High Court found that the sentencing judge did not err in the manner claimed by the appellant. The court held that the sentence was within the appropriate range and that the judge had considered the relevant matters, including the appellant's adjustment disorder and the delay in sentencing. The Court held that the sentence was not manifestly excessive and that there was no basis for granting leave to appeal.

The High Court refused the appellant's application for leave to appeal. The Court found that the sentence was within the appropriate range and that the sentencing judge had considered all relevant factors, including the delay in sentencing and the appellant's adjustment disorder. The Court concluded that there was no error in the sentence and that the appellant's application for leave to appeal should be refused.

Orders