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Shakhanov v The Queen

Shakhanov v The Queen

Case [2019] VSCA 38 6 March 2019

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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…

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 Shakhanov v The Queen

Details

AGLC: Shakhanov v The Queen [2019] VSCA 38
Case: [2019] VSCA 38
Decision Date: 6 March 2019

CaseChat Overview and Summary

The appellant, Shakhanov, appealed against his sentence in the High Court, challenging the sentence imposed for his involvement in a significant drug importation scheme. Shakhanov had attempted to possess 107 kilograms of methylamphetamine. The Court was tasked with determining whether the disparity between the appellant’s sentence and that of his co-offenders was justified given the differences in culpability and mitigating circumstances.

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