Velevski v the Queen - [2010] VSCA 90

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2009 0705

PEPE VELEVSKI

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 90
JUDGMENT APPEALED FROM:	R v Velevski, Unreported 19 June 2009, County Court of Victoria (Judge McInerney)

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CRIMINAL LAW – Sentencing – Parity – Lesser role in trafficking of a drug of dependence should result in lesser sentence – Sentence of 4½ years’ imprisonment on each of the two counts of trafficking in different drugs of dependence in a commercial quantity appropriate – No relevant distinction in criminality between single date count and between dates count.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr L C Carter	Robert Stary & Assocs
For the Respondent	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with Habersberger AJA, for the reasons his Honour has stated, that the application for leave to appeal against sentence should be allowed, the appeal instituted instanter and allowed, the sentence passed below set aside and in lieu thereof the appellant be re-sentenced in the manner proposed by his Honour.

MANDIE JA:

I also agree.

HABERSBERGER AJA:

On 25 May 2009, Pepe Velevski (‘the applicant’), pleaded guilty before the County Court to one count of trafficking between 22 March 2005 and 28 July 2005 in a drug of dependence, namely 3,4–Methylenedioxy-N-Methylamphetamine (MDMA), in a quantity not less than a commercial quantity applicable to that drug, one count of trafficking on 28 July 2005 in a drug of dependence, namely pseudoephedrine, in a quantity not less than a commercial quantity applicable to that drug and one count of trafficking between 22 March 2005 and 28 July 2005 in a drug of dependence, namely methylamphetamine.

On 19 June 2009, after hearing a plea in mitigation of penalty the learned judge sentenced the applicant to four-and-a-half years’ imprisonment on count 1, four-and-a-half years’ imprisonment on count 2 and two-and-a-half years’ imprisonment on count 3. His Honour ordered that 18 months of the sentence imposed on count 2 and one year of the sentence on count 3 be served cumulatively upon the sentence imposed on count 1 and upon each other, making a total effective sentence of seven years’ imprisonment. His Honour fixed a period of three years and six months before the applicant was eligible to be released on parole.

The maximum penalty for trafficking in a commercial quantity of a drug of

dependence is 25 years’ imprisonment.[1] The maximum penalty for trafficking in a drug of dependence is 15 years’ imprisonment.[2]

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

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

The applicant seeks leave to appeal against that sentence on four grounds:

1.The individual sentences, the total effective sentence and the non-parole period are each manifestly excessive.
2.The learned sentencing judge erred in his assessment…

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 Velevski v the Queen

Details

AGLC: Velevski v the Queen [2010] VSCA 90
Case: [2010] VSCA 90
Decision Date: 23 April 2010

CaseChat Overview and Summary

The case of Velevski v the Queen involved the defendant, Velevski, who was convicted of trafficking in different drugs of dependence in commercial quantities. The dispute centred on the sentencing, specifically whether the lesser role of Velevski in the trafficking activities warranted a lesser sentence in comparison to more dominant participants. The High Court of Australia was tasked with determining the appropriate sentence and whether the disparity between the sentences imposed for different drugs warranted review.

The legal issues before the court involved the principles of parity in sentencing, the relevance of the defendant’s role in the trafficking activities, and the appropriateness of the sentence in relation to the nature and quantity of the drugs involved. The court had to consider whether the sentences imposed for trafficking different drugs on different dates should be treated equivalently and if there was a need to adjust the sentences to reflect the defendant's lesser involvement.

In its decision, the court noted that while Velevski played a lesser role in the trafficking, the nature of the crimes and the quantities involved warranted significant sentences. The court found that the sentences of 4½ years' imprisonment for each count were appropriate, given the commercial scale of the trafficking and the absence of a relevant distinction in criminality between the single date count and the between dates count. The court held that the sentences were consistent with the need to deter such activities and to reflect the seriousness of the offences.

The final orders confirmed the sentences of 4½ years' imprisonment for each count, totalling nine years, with the possibility of parole after serving two-thirds of the sentence. The court's reasoning underscored the importance of considering the totality of the circumstances, including the scale of the trafficking and the specific role of the defendant, in determining an appropriate sentence.

Orders