Vocaj v The King - [2023] VSCA 242

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0172

KRISTJAN VOCAJ	Appellant
v
THE KING	Respondent

---

JUDGES:	WALKER and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	3 October 2023
DATE OF JUDGMENT:	12 October 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 242
JUDGMENT APPEALED FROM:	[2022] VCC 1659 (Judge Mullaly)

---

CRIMINAL LAW – Appeal – Sentence – Charges relating to falsification of documents, drug offences and dealing with proceeds of crime – Sentenced to 3 years 9 months’ imprisonment with non-parole period of 2 years 6 months – Whether judge erred by sentencing the appellant on incorrect factual basis – No misunderstanding of facts by judge – Impugned passages to be understood in context of reasons as a whole – Whether individual or total effective sentence manifestly excessive – Sentence for individual charge within the range of sentence open to sentencing judge – Modest cumulation of sentences – Total effective sentence reflects principle of totality – Appeal dismissed.

Nguyen v The Queen [2019] VSCA 134, Osman v The Queen [2021] VSCA 176 followed – Le v The Queen [2021] VSCA 220, Dang v The Queen [2021] VSCA 23, Nguyen v The Queen [2021] VSCA 211 discussed.

---

Counsel
Applicant:	Mr OP Holdenson KC
Respondent:	Ms D Piekusis KC
Solicitors
Applicant:	Marcevksi Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

WALKER JA
MACAULAY JA:

On 9 September 2022 the appellant, Kristjan Vocaj, pleaded guilty to five indictable offences and one summary offence, and was sentenced for that offending as follows:

Charge on Indictment

Offence

Max Penalty

Sentence

Cumulation

1 Falsification of documents[1] 10 years 1 month –

2 Cultivation of narcotic plant, namely, cannabis – commercial quantity[2] 25 years 3 years 3 months Base

3 Permitting use of premises for cultivation of drug of dependence[3] 5 years 9 months 2 months

4 Trafficking in a drug of dependence, namely, cannabis[4] 15 years 1 year 2 months 4 months

5 Knowingly possessing a false travel document[5] 10 years 1 month –

Related Summary Offences

15 Dealing with property suspected of being proceeds of crime[6] 2 years 1 month –

Total Effective Sentence: 3 years 9 months’ imprisonment

Non-Parole Period: 2 years 6 months

Pre-sentence Detention Declared: 118 days

Section 6AAA Statement:
Total Effective Sentence 5 years

Non-parole Period 3 years 10 months

[1]Contrary to s 83A(5) of the Crimes Act 1958.
[2]Contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981.
[3]Contrary to s 72D of the Drugs, Poisons and Controlled Substances Act.
[4]Contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act.
[5]Contrary to s 195 of the Crimes Act.
[6]Contrary to s 195 of the Crimes Act.

The appellant now appeals against the sentence imposed upon him on four grounds,[7] as follows:
Ground 1: The learned sentencing judge erred in finding the facts which constituted the factual basis upon which the individual sentence of imprisonment was imposed on Charge 2…

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 Vocaj v The King

Details

AGLC: Vocaj v The King [2023] VSCA 242
Case: [2023] VSCA 242
Decision Date: 12 October 2023

CaseChat Overview and Summary

The case before the court involved an appeal by the appellant, Vocaj, against his sentence following convictions for various criminal offences, including falsification of documents, drug-related offences, and dealing with the proceeds of crime. The appeal was heard by the Supreme Court of Victoria. The appellant contested the appropriateness of the sentence imposed by the primary judge, arguing that the sentence was based on an incorrect understanding of the facts and that the total effective sentence was manifestly excessive.

The court was required to determine whether the primary judge had erred by sentencing the appellant on an incorrect factual basis and whether the total effective sentence was manifestly excessive. The court examined the sentencing remarks of the primary judge to ascertain if there was any misunderstanding of the facts. The impugned passages were considered in the context of the reasons as a whole. The court also assessed whether the sentence for individual charges was within the range of sentences available to the sentencing judge and whether the total effective sentence reflected the principle of totality.

The court found that the primary judge did not misunderstand the facts, and the impugned passages were to be understood in the context of the reasons as a whole. The court further held that the sentence for each individual charge was within the range of sentences open to the sentencing judge, and the modest cumulation of sentences reflected the principle of totality. The total effective sentence was not manifestly excessive, and the appeal was dismissed. The court referred to several cases to support its reasoning, including Nguyen v The Queen, Osman v The Queen, Le v The Queen, and Dang v The Queen.

Orders