Shaun Joseph Vlismas v Regina - [2006] NSWCCA 270

CITATION: Shaun Joseph Vlismas v Regina [2006] NSWCCA 270

HEARING DATE(S): 2 August 2006

JUDGMENT DATE:
2 August 2006

JUDGMENT OF: Beazley JA at 1; Hulme J at 28; Hislop J at 29

EX TEMPORE JUDGMENT DATE: 08/02/2006

DECISION: Leave to appeal granted; appeal dismissed.

CATCHWORDS: SENTENCING – appeal against sentences – whether manifestly excessive – role of appellant more serious than that of co-offender – sentences appropriate given seriousness of offences - SENTENCING – parity – sentencing judge gave same effective sentence to appellant and co-offender – sentencing judge erred in not considering additional offence committed by co-offender separately – regard must be had to questions of parity in determining sentences – no interference with sentences

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW) s 33
Drug Misuse and Trafficking Act 1985 (NSW) s 23(2)(a), 25(1), 29

CASES CITED: R v Mangano (2006) NSWCCA 35

PARTIES: Shaun Joseph Vlismas (Appellant)
Crown (Respondent)

FILE NUMBER(S): CCA 2006/1145

COUNSEL: G Wendler (Appellant)
J Dwyer (Crown)

SOLICITORS: R van Houten (Appellant)
S Kavanagh (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/1109; 05/21/1110; 05/21/1111

LOWER COURT JUDICIAL OFFICER: English DCJ

LOWER COURT DATE OF DECISION: 13 December 2005

- 7 -

CCA 2006/1145

BEAZLEY JA
HULME J
HISLOP J

Ex tempore 2 August 2006

SHAUN JOSEPH VLISMAS v REGINA

Judgment

1 BEAZLEY JA: The applicant seeks leave to appeal against sentences imposed upon him by her Honour Judge English on 13 December 2005 at Penrith District Court.

2 The applicant was charged with four counts on indictment. Two counts (counts 1 and 3 on the indictment) were of ‘cultivate prohibited plants of not less than the commercial quantity’ in the one case at premises at Blacktown, and in the other case at premises at Chipping Norton. Those offences were charged under the provisions of s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) (the Drug Misuse and Trafficking Act) and carry a maximum penalty of 15 years imprisonment.

3 The other counts (counts 2 and 4 on the indictment) were ‘supply prohibited drug’, namely cannabis leaf, contrary to the provisions of s 25(1) of the Drug Misuse and Trafficking Act, again, at premises at Blacktown and Chipping Norton respectively. The maximum penalty under s 25(1) is, relevantly, ten years imprisonment. The charge was laid under s 25(1) because of the ‘deemed supply’ provisions of s 29.

4 The charges related to a joint criminal enterprise with two other persons, a Mr Langdon and a Mr Walsh. Mr Langdon was charged with the same four offences as was the applicant. In addition, he was separately charged with an offence under s 23(1)(a) of the Drug Misuse and Trafficking Act of cultivating prohibited plants at Carlingford. The maximum penalty under that section is, relevantly, ten years imprisonment.

5 Mr Walsh who was found by her Honour to be a lesser player in the joint criminal enterprise, was charged with two offences, one of ‘knowingly take part’ in…

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.

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Details

Case: [2006] NSWCCA 270
Decision Date: 02/08/2006

CaseChat Overview and Summary

In the matter of Shaun Joseph Vlismas against Regina, the appellant was convicted for his involvement in a significant drug trafficking operation. The appellant appealed against the sentences imposed, arguing they were manifestly excessive, despite acknowledging that his role was more serious than that of his co-offender. The appeal was heard in the High Court of Australia.

The primary legal issues addressed were whether the sentences were manifestly excessive, particularly given the appellant's more serious role in the drug trafficking operation, and whether the sentencing judge adequately considered questions of parity between the appellant and his co-offender. The court had to assess whether the sentencing judge's approach to parity, and the failure to separately consider an additional offence committed by the co-offender, constituted an error warranting interference with the sentences.

The High Court found that while the sentencing judge erred in not separately considering the additional offence committed by the co-offender, this did not constitute an error of law. The court emphasised that in determining sentences, regard must be had to questions of parity between the appellant and co-offenders. However, the court held that the sentences were appropriate given the seriousness of the offences and the appellant's role. The High Court concluded that there was no basis to interfere with the sentences, as they were not manifestly excessive.

No further orders were made.

Orders