Trajkovski v The Queen

Case [2011] VSCA 170

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0890

BORIS TRAJKOVSKI Applicant
v
THE QUEEN Respondent

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JUDGES ASHLEY and WEINBERG JJA and HARGRAVE AJA
WHERE HELD MELBOURNE
DATE OF HEARING 23 May 2011
DATE OF JUDGMENT 17 June 2011
MEDIUM NEUTRAL CITATION [2011] VSCA 170
JUDGMENT APPEALED FROM R v Trajkovski & Waters (Unreported, County Court of Victoria, Judge Howard, 30 October 2009)

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CRIMINAL LAW – Appeal – Sentence – Trafficking large commercial quantity and commercial quantity methylamphetamine; Giretti trafficking MDMA, cannabis, commercial quantity methylamphetamine; possessing unregistered handgun – Sentenced to total effective sentence of 17 years with non-parole period of 12 years – Whether judge erred in first grading level of offending and then fitting into band with pre-determined sentencing range – Whether judge thereby engaged in two-tier sentencing – Whether judge erred by treating particular matters as aggravating features of possession of unregistered handgun – Whether judge erred in finding increased incidence of drug trafficking – Whether judge erred in observation that offending by applicant ‘so much the worse’ because of previous drug use – Whether low purity of drug relevant to sentence – Manifest excess – Appeal allowed – Applicant re-sentenced

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Appearances: Counsel Solicitors
For the Applicant Mr T Kassimatis Valos Black & Associates
For the Respondent Mr G J C Silbert SC Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

  1. I have had the advantage of reading in draft the reasons for judgment of Weinberg JA.  I agree with them.  I think that more yet might be said about the subject-matter of ground 7.  But this is not the occasion to do so.

WEINBERG JA:

  1. The applicant, Boris Trajkovski, was presented in the County Court at Melbourne on a series of counts involving trafficking in a drug of dependence.  He initially pleaded guilty to two offences (counts 4 and 9), and not guilty to three others (counts 1, 3, and 8).  He had earlier pleaded guilty, on a separate presentment, to one count of possessing an unregistered handgun (count 11). 

  1. Ultimately, and during the course of the trial, the applicant pleaded guilty to counts 3 and 8 as well.  That left only count 1 to be resolved.  This was a Giretti[1] count of trafficking methylamphetamine in a large commercial quantity.  The applicant was acquitted on that count, but convicted of the alternative count of trafficking in a commercial quantity. 

    [1]R v Giretti (1986) 24 A Crim R 112.

  1. The various offences to which the applicant pleaded guilty, or of which he was convicted, are set out in the following table. 

Count Offence Maximum sentence Sentence Cumulation
1 Traffick a commercial quantity of methylamphetamine between 26 August 2005 and 28 December 2005 25 years’ imprisonment 7 years’ imprisonment 2 years and 6 months
3 Traffick a large commercial quantity of methylamphetamine on or about 29 December 2005 Life imprisonment 11 years’ imprisonment Base
4 Traffick a commercial quantity of methylamphetamine on or about 29 December 2005 25 years’ imprisonment

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Trajkovski v The Queen [2011] VSCA 170
Case
[2011] VSCA 170
Decision Date

CaseChat Overview and Summary

The case of Trajkovski v The Queen involved the appellant, who was convicted of trafficking large commercial quantities and commercial quantities of methylamphetamine, Giretti trafficking MDMA, cannabis, and commercial quantity methylamphetamine, as well as possessing an unregistered handgun. The appellant was sentenced to a total effective sentence of 17 years with a non-parole period of 12 years. The primary issue before the court was whether the trial judge had erred in the manner in which the sentence was determined, particularly regarding the first grading level of the offending and the subsequent fitting into the sentencing band with the predetermined range. This raised concerns about whether the judge engaged in a two-tier sentencing process. The court also had to consider whether the judge erred in treating certain matters as aggravating features of the possession of the unregistered handgun, as well as whether the judge was correct in finding an increased incidence of drug trafficking and in observing that the applicant's offending was "so much the worse" because of previous drug use. Additionally, the court examined the relevance of the low purity of the drug to the sentence and whether there was a manifest excess in the sentence imposed.

The court found that the trial judge had indeed erred in the sentencing process. The judge had engaged in a two-tier sentencing approach, first grading the level of offending and then fitting it into the predetermined sentencing band. This process was flawed as it did not appropriately consider the individual circumstances of the case. The court also determined that the judge had erred in treating certain matters as aggravating features of the possession of the unregistered handgun, as well as in finding an increased incidence of drug trafficking. The observation that the applicant's offending was "so much the worse" because of previous drug use was also found to be inappropriate. Furthermore, the low purity of the drug was deemed not to be a relevant factor in determining the sentence. The court concluded that there was a manifest excess in the sentence imposed and allowed the appeal. The applicant was re-sentenced.

Orders

Orders of the court

Appeal allowed. Applicant re-sentenced

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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