SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0069
| DMITRI SHAKHANOV | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and HARGRAVE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 27 February 2019 |
| DATE OF JUDGMENT: | 6 March 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 38 |
| JUDGMENT APPEALED FROM: | [2018] VCC 276 (Judge Mullaly) |
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CRIMINAL LAW – Appeal – Sentence – Parity – Significant drug importation scheme – Appellant attempted to possess 107 kilograms of methylamphetamine – Appellant sentenced to 9 years’ imprisonment with non-parole period of 6 years – One co-offender sentenced to 10 years’ imprisonment with non-parole period of 7 years – Whether lower level of culpability and significantly better mitigating circumstances necessitated larger disparity – Another co-offender sentenced to 7 years’ imprisonment with non-parole period of 4 years – Whether similar offending and mitigating circumstances required the same or similar sentence – Appeal allowed – Appellant resentenced to 8 years’ imprisonment with non-parole period of 5 years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P Morrissey SC | S Zahr & Associates |
| For the Respondent | Mr P J Doyle | Ms A Pavleka, Commonwealth Director of Public Prosecutions |
PRIEST JA:
For the reasons given by Hargrave JA, whose judgment I have had the considerable advantage of reading in draft, I agree that the appeal should be allowed and that the appellant should be resentenced in the manner proposed by his Honour.
HARGRAVE JA:
The appellant, Dmitri Shakhanov, was one of a group of offenders involved in the attempted importation into Australia of 209.79 kilograms of pure methylamphetamine. A ‘commercial quantity’ of methylamphetamine is 0.75 kilograms. When arrested, Shakhanov had 143 times the commercial quantity of a substituted version of the substance in his possession. If the importation had been successful, the drugs had an estimated street value of between $31.1 million to $107 million.
Shakhanov pleaded guilty to one charge of attempting to possess a commercial quantity of a border controlled substance reasonably suspected of having been unlawfully imported, contrary to ss 11.1 and 307.8(1) of the Criminal Code 1995 (Cth). Shakhanov, along with co-offender Andrew Findlay, had been initially charged with attempted trafficking but those charges were withdrawn prior to the committal and the charge of attempted possession was substituted. The same maximum penalty applies to both attempted trafficking and possession offences.[1]
[1]Life imprisonment, or a fine of 7500 penalty units ($1,350,000), or both.
Shakhanov and Findlay conducted their pleas together on 12 December 2017 and were sentenced by a judge of the County Court on 9 March 2018.[2] Shakhanov was sentenced to a term of imprisonment of 9 years with a non-parole period of 6 years. Findlay was sentenced to a term of imprisonment of 7 years with a non-parole period of 4 years. Another co-offender, Vu Phi Nguyen, was earlier sentenced by a different judge of the County Court to a term of imprisonment of 10 years with a non-parole period of 7 years.[3] The disparity between these three sentences is the subject of Shakhanov’s…
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- AGLC
- Shakhanov v The Queen [2019] VSCA 38
- Case
- [2019] VSCA 38
- Decision Date
CaseChat Overview and Summary
The primary legal issues involved the principles of parity and proportionality in sentencing. The appellant argued that his lower level of culpability and significantly better mitigating circumstances warranted a larger disparity in sentence compared to his co-offenders. Additionally, the appellant contended that the disparity between his sentence and that of another co-offender, who was involved in similar offending but had different mitigating circumstances, was not justified.
The Court found that the appellant’s arguments were persuasive. It determined that the sentencing judge had failed to adequately account for the differences in culpability and mitigating factors among the co-offenders. The Court allowed the appeal and resentenced Shakhanov to 8 years’ imprisonment with a non-parole period of 5 years. This resentence aimed to achieve a more proportionate outcome in line with the principles of parity and proportionality.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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