Sikaloski v The Queen - [2012] VSCA 130

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2010 0398

ROBERT SIKALOSKI	Appellant
	v
THE QUEEN	Respondent

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JUDGES	WEINBERG JA and CAVANOUGH AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	31 January 2012
DATE OF JUDGMENT	22 June 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 130
JUDGMENT APPEALED FROM	R v Sikaloski (Unreported, County Court of Victoria, Judge Dean, 1 November 2010)

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CRIMINAL LAW – Appeal against sentence - Trafficking in a commercial quantity of a drug of dependence – Appellant found to have acquired brain injury – R v Verdins (2007) 16 VR 269 – Relevance of premeditation, planning and implementation – Need for cogent evidence of causal relationship between offending and mental condition – Appeal dismissed

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms E McKinnon	Cameron Marshall & Associates
For the Respondent	Mr B Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

I agree with Cavanough AJA.

CAVANOUGH AJA:

On 26 October 2010 the appellant, Mr Robert Sikaloski, pleaded guilty in the County Court to three counts of drug trafficking and one count of theft. The offences had occurred in 2009.

On 1 November 2010 Mr Sikaloski was sentenced by his Honour Judge Dean as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Trafficking in a commercial quantity of a drug of dependence (methylamphetamine) [s 71AA Drugs Poisons and Controlled Substances Act 1981 (Vic)] 25 years’ imprisonment
[s 71AA Drugs Poisons and Controlled Substances Act 1981] 4 years’ imprisonment Base Sentence

2 Trafficking in a commercial quantity of a drug of dependence (Cannabis L) [s 71AA Drugs Poisons and Controlled Substances Act 1981 (Vic)] 25 years’ imprisonment
[s 71AA Drugs Poisons and Controlled Substances Act 1981] 3 years’ and 6 months’ imprisonment 1 year

3 Theft [s 74 Crimes Act 1958 (Vic)] 10 years’ imprisonment [s 74(1) Crimes Act 1958 (Vic)] 3 months’ imprisonment 3 months

4 Trafficking in a commercial quantity of a drug of dependence (MDMA) [s 71AA Drugs Poisons and Controlled Substances Act 1981 (Vic)] 25 years’ imprisonment
[s 71AA Drugs Poisons and Controlled Substances Act 1981] 3 years’ imprisonment 1 year

Total Effective Sentence: 6 years’ and 3 months’ imprisonment

Non-Parole Period: 3 years’ and 6 months’ imprisonment

Pre-sentence Detention Declared: 139 days

6AAA Statement: 7 years’ and 6 months’ imprisonment with a non-parole period of 5 years

Other orders:
Sentenced as a serious drug offender on Charges 2 and 4
Compensation Order
Pecuniary Penalty Order
Forensic Sample Order
Forfeiture Order

Mr Sikaloski sought leave to appeal on two grounds. On 3 June 2011

Neave JA granted him leave on only one of those grounds, namely that

The sentencing judge erred in failing to give any or any sufficient weight to the appellant’s intellectual impairment and/or mental illness at the time of the offending, and subsequent.

Her Honour refused leave in relation to the other proposed ground, namely manifest excess. The appellant has not challenged that refusal.

The Crown did not submit before us…

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: [2012] VSCA 130
Decision Date: 22 June 2012

CaseChat Overview and Summary

The appellant, Sikaloski, appealed against his sentence for trafficking in a commercial quantity of a drug of dependence. The case was heard by the Supreme Court of Victoria. The central issue in the appeal was whether the trial judge had adequately taken into account the appellant's acquired brain injury when determining his sentence. The appellant contended that his brain injury significantly impaired his cognitive functions, which in turn affected his culpability and deserved a lesser sentence. The prosecution argued that the trial judge had appropriately balanced the mitigating factor of the brain injury with other aggravating factors, such as the scale of the offence and the appellant's criminal history.

The court examined the principles set out in R v Verdins (2007) 16 VR 269, which outline the considerations relevant to sentencing in cases where a defendant's mental condition may affect their culpability. The court noted that while the appellant's brain injury was a significant factor, it was not the sole determinant of his culpability. The court held that the trial judge had adequately weighed the mitigating effect of the brain injury against the seriousness of the offence, the level of premeditation, planning, and implementation involved, and the appellant's criminal history. The court found that there was no cogent evidence to establish a direct causal relationship between the brain injury and the offending behaviour, and thus, the trial judge's sentencing decision was not flawed.

In light of the above, the appeal was dismissed. The court affirmed the original sentence imposed by the trial judge. The appellant's sentence for trafficking in a commercial quantity of a drug of dependence remained unchanged, reflecting the appropriate balance between the mitigating and aggravating factors considered during the sentencing process.

Orders