Zlate Cvetanovski v The Queen - [2015] VSCA 65

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0039

ZLATE CVETANOVSKI	Applicant
V
THE QUEEN	Respondent

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JUDGES:	WEINBERG, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 April 2015
DATE OF JUDGMENT:	16 April 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 65	1^st Revision: 21 April 2015, [22]
JUDGMENT APPEALED FROM:	DPP v Cvetanovski (Unreported, County Court of Victoria, 4 February 2014, Judge Coish)

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CRIMINAL LAW — Appeal — Conviction — Plea of guilty to two charges of trafficking a commercial quantity of a drug of dependence and possessing a drug of dependence (Phenyl-2-Propanone) — Whether offences known to the law — Whether Phenyl-2-Propanone a drug of dependence — Whether parts of the Drugs, Poisons and Controlled Substances Act 1981 impliedly repealed by Regulations — Whether inconsistency between Commonwealth and State law.

CRIMINAL LAW — Appeal — Conviction — Plea of guilty to trafficking a drug of dependence (MDMA) — Charge not laid against co-offender with whom the applicant was complicit — Quantity of drug in mixture ‘low’ — Whether prosecution of charge an abuse of process.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Danos	Victor C Andreou
For the Crown	Mr B Kissane QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

WEINBERG JA:

I will invite Priest JA to deliver the first judgment.

PRIEST JA:

Introduction

Despite having pleaded guilty to each charge, by a Notice dated 27 November 2014, the applicant sought leave to appeal against his conviction for trafficking in a drug of dependence, ‘Phenyl-2-Propanone’, in not less than a commercial quantity (charge 1);[1] trafficking in a drug of dependence, MDMA, in not less than a commercial quantity (charge 4);[2] and possession of a drug of dependence, Phenyl-2-Propanone (charge 5).[3] He relies on two grounds expressed as follows:

1.At the time the applicant pleaded ‘guilty’ to counts (1) and (5) in Indictment CR09067413.11 [scil, C0906741.3] Phenyl- 2-Propanone was not a drug of dependence but a precursor chemical as a consequence of the Drugs Poisons & Controlled Substances (Precursor Chemical) Regulations 2007 and as a consequence pleaded guilty to an offence not known to the law.
2.Charge 4 amounts to an abuse of the process as:
(a) The amount of MDMA located was so ‘low’ as not to justify a charge
(b) This charge was not pursued against the co-accused.

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

[2]Ibid.

[3]Ibid, s 73.

For the reasons that follow, I would refuse leave to appeal against conviction.

The offending

Operation Cover Drive was a police investigation into the manufacture and trafficking of amphetamines. It concentrated on two premises — Fry’s Self Storage, at 25 Reynold Street, Tullamarine (the ‘Tullamarine premises’), and 3752 Geelong-Ballan Road, Mount Wallace (the ‘Mount Wallace premises’).

Pursuant to a warrant granted on 29 September 2008, police were granted a surveillance device warrant and installed listening and optical surveillance devices in the Tullamarine premises.

At various times between 27 October 2008 and 15 December 2008,…

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.

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Details

Case: [2015] VSCA 65
Decision Date: 16 April 2015

CaseChat Overview and Summary

Zlate Cvetanovski appealed his conviction and sentence for trafficking a commercial quantity of a drug of dependence, specifically Phenyl-2-Propanone, and possessing a drug of dependence. The case was heard in the Supreme Court of Victoria, where Cvetanovski had previously pleaded guilty to the charges. The appeal raised several legal issues, including whether Phenyl-2-Propanone was recognised as a drug of dependence under the Drugs, Poisons and Controlled Substances Act 1981. The appeal also questioned whether certain parts of the Act had been impliedly repealed by Regulations and if there was an inconsistency between Commonwealth and State law. Furthermore, the appeal argued that the prosecution of the trafficking charge was an abuse of process due to the low quantity of MDMA found in the mixture and the fact that the charge was not laid against a co-offender with whom Cvetanovski was complicit.

The court considered the legal arguments presented in the appeal and found that Phenyl-2-Propanone was indeed a drug of dependence under the Act. The court also determined that there was no inconsistency between Commonwealth and State law, as the Regulations did not imply any repeal of the Act. With respect to the abuse of process argument, the court found that the prosecution was not an abuse of process, as the trafficking charge was valid based on the total quantity of drugs involved, including the low quantity of MDMA in the mixture. The court rejected the appeal and upheld the conviction and sentence.

The Supreme Court of Victoria dismissed the appeal, affirming the conviction and sentence of Zlate Cvetanovski. The court found that Phenyl-2-Propanone was a drug of dependence and that the prosecution of the trafficking charge was not an abuse of process. The court also determined that there was no inconsistency between Commonwealth and State law regarding the Drugs, Poisons and Controlled Substances Act 1981 and the Regulations.

Orders