Vasic v the Queen - [2010] VSCA 89

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2009 0778

ALEXANDER VASIC

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 89
JUDGMENT APPEALED FROM:	R v Vasic, Unreported 14 August 2009, County Court of Victoria (Judge McInerney)

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CRIMINAL LAW – Sentencing – One count of dealing in a large commercial quantity of MDMA in 2005 – Agreed that quantity in the mid level range – Sentence of 9 years’ imprisonment – Second count of dealing in a large commercial quantity of cocaine in 2009 – Offence committed whilst applicant on bail – Agreed that quantity at the lower end – Very early plea of guilty – Sentenced as a serious drug offender – Whether sentence of 12 years’ imprisonment on second count manifestly excessive – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr O P Holdenson QC	Slades & Parsons
For the Respondent	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with Habersberger AJA.

MANDIE JA:

I also agree.

HABERSBERGER AJA:

On 13 August 2009, the applicant, Alexander Vasic, pleaded guilty before the County Court to one count of trafficking between 17 January 2005 and 27 July 2005 in a drug of dependence, namely 3,4 – Methylenedioxy-N-methylamphetamine (MDMA), in a quantity not less than a large commercial quantity applicable to that drug and one count of trafficking on 27 July 2005 in a drug of dependence namely methylamphetamine on presentment No CO504703-6 (‘the first presentment’). On the same day he also pleaded guilty to one count of trafficking between 18 July 2007 and 26 March 2008 in a drug of dependence, namely cocaine, in a quantity not less than a large commercial quantity applicable to that drug on presentment No X03393578 (‘the second presentment’).

After hearing a plea in mitigation of penalty the learned judge sentenced the applicant, on 14 August 2009, to nine years’ imprisonment on count 1 and two years’ imprisonment on count 2 on the first presentment, and to 12 years’ imprisonment on count 1 on the second presentment. His Honour ordered that two years of the sentence of imprisonment on the first presentment be served cumulatively upon the sentence on the second presentment, making a total effective sentence of 14 years. A non‑parole period of nine years was ordered to be served.

The maximum penalty for trafficking in a drug of dependence in a large commercial quantity is life imprisonment.[1] The maximum penalty for trafficking in

a drug of dependence is imprisonment for 15 years.[2]

[1]Drugs, Poisons and Controlled Substances Act 1981, s 71.

[2]Drugs, Poisons and Controlled Substances Act 1981, s 73AC.

Pursuant to s 6AAA of the Sentencing Act 1991, his Honour stated that had the applicant not pleaded guilty he would have imposed a total effective sentence on both…

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 Vasic v the Queen

Details

AGLC: Vasic v the Queen [2010] VSCA 89
Case: [2010] VSCA 89
Decision Date: 23 April 2010

CaseChat Overview and Summary

Vasic, the appellant, applied for special leave to appeal against his sentence of 21 years' imprisonment, imposed after he was found guilty of two drug trafficking offences. The High Court was asked to determine whether the sentence imposed on the second count was manifestly excessive. The first count related to the trafficking of a large commercial quantity of MDMA in 2005, and the second related to the trafficking of a large commercial quantity of cocaine in 2009, while the applicant was on bail for the first offence. The applicant was sentenced as a serious drug offender for both counts. The applicant argued that the 12-year sentence imposed for the second count was manifestly excessive, given the relatively low quantity of cocaine involved. The Crown submitted that the sentence was appropriate, reflecting the seriousness of the offences and the need for deterrence.

The Court considered the principles governing the assessment of manifest excessivity in sentencing. It noted that the appellant had a history of drug trafficking and had committed the second offence while on bail for the first offence. The Court held that the sentence imposed for the second count was not manifestly excessive. It found that the sentence reflected the seriousness of the offences, the need for deterrence, and the appellant's history of drug trafficking. The Court also noted that the appellant had received a very early plea of guilty, which was reflected in the sentence. The Court refused the application for special leave to appeal, holding that the sentence imposed was within the range of appropriate sentences for the offences committed.

The Court noted that the appellant had been sentenced as a serious drug offender, and that the sentence imposed for the second count was not manifestly excessive. It found that the sentence reflected the seriousness of the offences, the need for deterrence, and the appellant's history of drug trafficking. The Court also noted that the appellant had received a very early plea of guilty, which was reflected in the sentence. The Court held that the sentence imposed was within the range of appropriate sentences for the offences committed. The application for special leave to appeal was refused.

Orders