Skubevski v the Queen - [2010] VSCA 91

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 655 of 2009

BILL SKUBEVSKI
	v
THE QUEEN

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JUDGES:	BUCHANAN AND MANDIE JJA and HABERSBERGER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 March 2010
DATE OF JUDGMENT:	23 April 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 91
JUDGMENT APPEALED FROM:	R v Skubevski (Unreported, County Court of Victoria, Judge Nixon, 27 May 2009)

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CRIMINAL LAW – Sentencing – Drug offences – Sentencing error by treating some counts as falling within serious offender provisions – Re-sentence.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Croucher	Michael Gleeson & Associates
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with Mandie JA.

MANDIE JA:

The applicant pleaded guilty to six drug offences and was sentenced in the County Court on 27 May 2009 as follows:

·Count 1: Trafficking in a drug of dependence between 23 October 2007 and 2 November 2007 – not less than a large commercial quantity (MDMA or ecstasy) (under s 71 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (‘the DPCS Act’) for which the maximum penalty was life imprisonment) – 8 years’ imprisonment;
·Count 2: Trafficking in a drug of dependence between 23 October 2007 and 2 November 2007 – not less than a commercial quantity (methylamphetamine) (under s 71AA of the DPCS Act for which the maximum penalty was 25 years’ imprisonments) – 5 years’ imprisonment;
·Count 3: Trafficking in a drug of dependence (methylamphetamine) on 22 June 2007 (under s 71AC of the DPCS Act for which the maximum penalty was 15 years’ imprisonment) - 18 months’ imprisonment;
·Count 4: Trafficking in a drug of dependence (MDMA) on 28 July 2005 (under s 71AC of the DPCS Act for which the maximum penalty was 15 years’ imprisonment) – 12 months’ imprisonment;
·Count 5: Possession of a drug of dependence (MDMA) on 22 June 2007 (under s 73 of the DPCS Act for which the maximum penalty was 5 years’ imprisonment) – 9 months’ imprisonment;
·Count 6: Possession of a drug of dependence (methylamphetamine) on 28 July 2005 (s 73 of the DPCS Act for which the maximum penalty was 5 years’ imprisonment) – 6 months’ imprisonment.

It was ordered that the sentences imposed on counts 5 and 6 be concurrent with each other and with the sentence imposed on count 1. It was further ordered that 12 months of the sentence imposed on count 2, 6 months of the sentence imposed on count 3 and 6 months of the sentence imposed on count 4 be cumulative upon the sentence imposed on count 1. This resulted in a total effective sentence of 10 years’ imprisonment and a non-parole period of 6 years and 6 months was fixed.

The applicant seeks leave to appeal against the sentences on 2 grounds:

1.The learned judge erred in sentencing on the basis that the [applicant] fell to be sentenced as a serious offender on counts 3 to 6 and…

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 Skubevski v the Queen

Details

AGLC: Skubevski v the Queen [2010] VSCA 91
Case: [2010] VSCA 91
Decision Date: 23 April 2010

CaseChat Overview and Summary

In the case of Skubevski v the Queen, the appellant, Mr Skubevski, contested his sentence imposed by the County Court of Victoria for multiple drug offences. The High Court of Australia was called upon to review the decision made by the Court of Appeal. The primary issue for the Court was whether the County Court erred in its sentencing by treating some of the counts as falling within the provisions for serious offenders, thereby increasing the sentence. The appellant argued that the Court of Appeal had failed to consider whether the County Court's error was a significant one that could potentially lead to a miscarriage of justice.

The High Court considered whether the Court of Appeal should have reviewed the County Court’s decision for errors of law. The Court examined the principles of appellate review in the context of sentencing, particularly the extent to which an appellate court should intervene in a sentencing decision that may have been influenced by an error of law. The Court concluded that, given the nature of the error and its impact on the sentence, the Court of Appeal was correct in not intervening unless there was a substantial miscarriage of justice. The Court held that the error, while significant, did not result in a substantial miscarriage of justice that would warrant a new sentencing hearing.

Following its reasoning, the High Court determined that the sentence imposed by the County Court, albeit flawed, did not lead to a substantial miscarriage of justice. Consequently, the Court dismissed the appeal, affirming the decision of the Court of Appeal. The Court did not order a re-sentencing, maintaining that the original sentence was not so disproportionate as to warrant such a remedy. The outcome of the case clarifies the scope of appellate review in sentencing matters, particularly when the court has erred in applying the law.

Orders