Vujasic v The Queen

[2011] VSCA 229

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0443 

PERO VUJASIC
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	HARPER and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 August 2011
DATE OF JUDGMENT:	4 August 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 229
JUDGMENT APPEALED FROM:	(Unreported, County Court of Victoria, Judge Howie, 25 November 2010)

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CRIMINAL LAW – Sentence – Judge sentenced on three counts then stated that total sentence was two years’ imprisonment and fixed non-parole period of 16 months – Arithmetic error – Total effective sentence in fact 22 months – Prosecutor informed judge immediately – Judge then stated total effective sentence was 22 months – Defence solicitor sought confirmation of non-parole period which judge confirmed as 16 months – No submission that non-parole period ought be reduced – Whether sentencing discretion vitiated – No error – Sentence appropriate in any event – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C B Boyce	David Laschko
No appearance by the Crown

HARPER JA:

1. I will ask Hansen JA to read the first judgment.

HANSEN JA:

1. The appellant pleaded guilty in the County Court to one count of trafficking cannabis in not less than a commercial quantity (count 1), one count of theft of $6,039 worth of electricity (count 2) and one count of possessing a drug of dependence, namely cannabis seeds (count 3).

1. Following a plea in mitigation on 18 November 2010, the appellant was sentenced on 25 November 2010 to 18 months’ imprisonment on count 1, six months’ imprisonment on count 2 and three months' imprisonment on count 3.  The judge made the sentence on count 1 the base sentence and ordered that three months of the sentence on count 2 and one month of the sentence on count 3 be served cumulatively on the sentence on count 1.  The judge then stated that the total sentence was a term of imprisonment of two years.  He fixed a non‑parole period of 16 months.  He declared pursuant to s 6AAA that but for the plea of guilty, he would have imposed a sentence of two years and six months’ imprisonment with a non‑parole period of 20 months.

1. At this point, the prosecutor drew to the judge's attention that the sentences added up to 22 months, not two years.  The judge agreed and stated that the total effective sentence was a term of imprisonment of 22 months.  The appellant's solicitor, who was not counsel before this Court on appeal, then asked the judge to clarify if the non‑parole period was 16 months.  The judge confirmed that it was and the appellant's solicitor replied, ‘good’.  The judge went on to sentence the appellant's partner.  There was no further mention of the appellant’s non‑parole period.

1. On 8 April 2011, the appellant was granted leave to appeal against sentence on the following ground:

The learned sentencing judge erred in failing to reconsider the length of the non‑parole period of 16 months after it became evident that the total effective sentence that was ordered was 22 months’ imprisonment as distinct from 24 months’ imprisonment.

1. In seeking to make good this contention, counsel in his written submission submitted that the judge thought that he was imposing a head sentence of 24 months’ imprisonment with a non‑parole period of 16 months.  Once the judge realised that the head sentence was 22 months rather than 24 months, that is the head sentence was not of the order he had originally considered, he ought to have reconsidered the length of the minimum term in order to comply with the principles laid down by the High Court as to the fixing of minimum terms in Power v R,[1] Deakin v R,[2] Bugmy v R[3] and more recently Hili v R;  Jones v R.[4]  Counsel noted the following passage from Deakin:[5]

The intention of the legislature in providing for the fixing of minimum terms is to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.     

[1](1974) 131 CLR 623.

[2](1984) 54 ALR 765.

[3](1990) 169 CLR 525.

[4](2010) 85 ALJR 195.

[5](1984) 54 ALR 765, 766.

1. Counsel further submitted that a minimum term can only be set by reference to a head term, which did not occur in the present case.  Rather, he said, the non‑parole period already fixed simply stood and persisted after the judge had realised his error.  By virtue of the reduced head term the minimum term went from being ‘a standard proportion of the pre-altered head term (60 per cent) to becoming the highest minimum term that could have been imposed at law’.[6]  I interpolate that in fact the figure was 67 per cent.  Counsel submitted that the sentencing discretion had thereby been vitiated, thus requiring re‑sentencing and discrete consideration being given to the non‑parole period in accordance with principle.

   [6]See s 11(3) of the Sentencing Act 1991 which provides that a non-parole period must be at least six months less than the term of the sentence.

1. The appellant's submission rests on a fundamental premise that the judge fixed the non‑parole period by reference to an erroneous total effective sentence of 24 months.  However, that premise cannot be assumed or accepted as correct.  The individual sentences and orders for cumulation were correctly stated and the judge may have fixed the non‑parole period by reference to those figures without specifically having regard to the arithmetically incorrect head sentence of two years.

1. Further, the submission is premised on the notion that if the head sentence was 24 months, the minimum term was a ‘standard’ 60 per cent whereas reduction of the head sentence to 22 months without any corresponding reduction of the minimum term led to a ‘non standard’ proportion (which was 73 per cent).

1. The difficulty with this is that, as the High Court recently said in Hili,[7] albeit in the context of federal legislation, it is wrong to begin at some assumed starting point as to the proportional relationship between a head sentence and the minimum term. 

   [7](2010) 85 ALJR 195, [44].

1. It follows that I do not accept that the sentencing discretion was vitiated by specific error.

1. But even if it be accepted that the judge did fix the non‑parole period by reference to an incorrect understanding of the total effective sentence, and failed to reconsider the non-parole period, I am not satisfied that a different sentence should be imposed.  To use the language of the High Court in Deakin, it was open to the judge to conclude that 16 months was the minimum time that justice required the appellant to serve having regard to all the circumstances of his offence.

1. The appellant ran a relatively sophisticated cannabis cultivation operation on leased industrial premises.  There were many mature plants, some 71 kilograms by weight, although the plea was conducted on the basis that the quantity by weight

was limited to ‘flowering heads and leaves’ weighing 37.8 kilograms.  Nevertheless, that was well over the commercial quantity threshold of 25 kilograms meaning that the maximum penalty was 25 years’ imprisonment.

1. As the judge found, these were serious offences.  The appellant engaged in criminal conduct as a mature adult (being 58 years of age at the time of sentence) in order to make money.  It was deliberate conduct over a period of months which involved significant planning and attention.  General and specific deterrence loomed large as sentencing factors.  As against this, there were mitigating factors including a delay of some three years between arrest and sentence, an order had been made for the forfeiture of property to the value of $20,000, there was a pecuniary penalty order by consent in the amount of $40,000, and a compensation order for $6,039 in favour of the electricity company.  The appellant also had some health issues.  But there was no particular reason why the appellant ought be given a long period of supervision on parole to aid his rehabilitation, as may often be the case with younger offenders suffering mental health and substance abuse issues.

1. In all the circumstances I am not satisfied that a different sentence should be imposed.

1. I would dismiss the appeal.

HARPER JA:

1. I agree.

1. The order of the Court will be that the appeal be dismissed.

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