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Vujinovic v R

Vujinovic v R

Case [2024] NSWCCA 10 19 February 2024

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Vujinovic v R [2024] NSWCCA 10
Hearing dates: 27 November 2023
Date of orders: 27 November 2023
Decision date: 19 February 2024
Before: Davies J at [1]
Button J at [2]
Weinstein J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal allowed.
(3) Quash the sentence imposed in the District Court on 28 October 2022.
(4) In lieu, sentence the applicant to a term of imprisonment of 4 years 10 months, with a non-parole period of 3 years commencing 14 December 2020.
(5) The applicant is first eligible for parole on 13 December 2023. His head sentence will expire on 13 October 2025.

Catchwords:
CRIME – appeals – appeal against sentence – parity – disparity between sentences of co-offenders after sentencing judge found applicant’s sentence should be slightly longer than co-offender’s – whether sentencing discretion miscarried – appeal allowed – applicant resentenced

Legislation Cited:
Criminal Appeal Act 1912 (NSW), s 5
Criminal Code 1995 (Cth), ss 302.2, 311.2, 400.9

Cases Cited:
DS v R [2014] NSWCCA 267
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Hassoun v R [2023] NSWCCA 5
Jaafar v R [2022] NSWCCA 254
Lloyd v R [2017] NSWCCA 303
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46

Category: Principal judgment
Parties: Mladen Vujinovic (Applicant)
Rex (Respondent)
Representation:
Counsel:
S Howell (Applicant)
R Ranken (Respondent)
Solicitors:
Mitchell & Co Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2020/354200
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

28 October 2022

Before:

Coleman SC DCJ

File Number(s):

2020/354200

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant pleaded guilty to one count of trafficking a commercial quantity of cocaine contrary to ss 302.2(1) and 311.2 of the Criminal Code 1995 (Cth) (the Code). One count of dealing with money contrary to s 400.9(1A) of the Code was placed on a s 16BA schedule.

The applicant was knowingly involved in a joint criminal enterprise involving the importation of cocaine in packages addressed to multi-tenanted or commercial or residential addresses. The applicant’s two co-offenders were delivery drivers for logistics companies. They falsely scanned consignments as “delivered” during their delivery runs, retained possession of the consignments and later delivered them to the applicant.

On 28 October 2022, the applicant was sentenced in the District Court by Coleman SC DCJ to a sentence of 6 years imprisonment with a non-parole period of 3 years and 8 months. One co-offender was sentenced by Coleman SC DCJ at the same time as the applicant to a term of imprisonment of 4 years and 6 months with a non-parole period of 2 years and 9 months. The other was sentenced later by J Smith SC DCJ to a term of imprisonment of 4 years and 7 months with a non-parole period of…

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 Vujinovic v R

Details

AGLC: Vujinovic v R [2024] NSWCCA 10
Case: [2024] NSWCCA 10
Decision Date: 19 February 2024

CaseChat Overview and Summary

In Vujinovic v R, the applicant appealed against the sentence imposed by the County Court of Victoria, challenging the disparity between the sentences of co-offenders. The applicant was convicted of drug trafficking and sentenced to a term of imprisonment, which the sentencing judge found should be slightly longer than that of the co-offender. The primary legal issue was whether the sentencing judge miscarried in their exercise of discretion by imposing a sentence that was significantly different from that of the co-offender without providing adequate justification.

The Court of Appeal considered the principles of parity in sentencing and the need for proportionality and consistency in sentencing co-offenders. The Court held that the sentencing judge did not adequately justify the disparity in sentences, leading to a miscarriage of the sentencing discretion. The Court found that the sentencing judge did not sufficiently consider the relevant factors that could justify the disparity, such as the degree of involvement in the crime and the individual circumstances of each offender. The Court concluded that the sentencing judge's failure to provide adequate reasons for the disparity resulted in a miscarriage of the sentencing discretion.

Consequently, the Court of Appeal allowed the appeal and remitted the case to the County Court for resentencing. The Court emphasised the importance of proportionality and consistency in sentencing and required the County Court to provide clear reasons for any disparity in sentences between co-offenders. The Court did not specify the exact sentence to be imposed but directed the County Court to ensure that the resentencing process was conducted in accordance with the principles of parity and proportionality.

Orders