Re Momcilovic [2008] VSCA 183 (22 September 2008)

Court of Appeal (Vic)|2008-09-22|Before: MAXWELL P and WEINBERG JA

CRIMINAL LAW - Bail pending appeal - Whether exceptional circumstances - Whether appeal against conviction 'bound to succeed' - Concession of sentencing error by Crown - Likelihood that custodial portion of sentence will be reduced on appeal - Risk that before appeal can be heard applicant will have served longer period than minimum custodial term likely to be fixed on re-sentencing - Re Zoudi [2006] VSCA 298; (2006) 14 VR 580 applied by analogy - Bail granted - Re DBA [2008] VSCA 138 referred to.

1 On 12 September 2008, the Court granted the applicant bail pending her appeal. We indicated that we would publish our reasons later. These are those reasons.

2 The applicant was convicted in the County Court, at Melbourne, on 23 July 2008, on one count of trafficking in a drug of dependence. On 20 August 2008 she was sentenced to a term of two years and three months' imprisonment with a non-parole period of 18 months. A period of 28 days was declared as having been served. The applicant then sought bail from this Court pending applications for leave to appeal against both conviction and sentence.

3 The circumstances surrounding the commission of this offence can be briefly stated. The applicant was the owner and occupier of a unit in Regency Towers in Exhibition Street, Melbourne. She lived there together with one Velimir Markovski who was, at the relevant time, her boyfriend. The evidence was that he trafficked regularly in amphetamines, using the unit as a base for his business. When a search warrant was executed upon the premises, a quantity of just under 400 grams of methylamphetamine was located, mainly in the kitchen, and particularly in a bar fridge and freezer.

4 The applicant claimed that she was unaware of the presence of drugs in her unit. She was faced with the difficulty of having to overcome a deeming provision in relation to knowledge by reason of the operation of s 5 of the Drugs, Poisons and Controlled Substances Act 1981, as well as a presumption of trafficking by reason of the quantum of the drugs found. The jury's verdict makes it clear that they were not persuaded by her evidence that she knew nothing of her boyfriend's drug related activities in her unit.

5 The principles that govern applications for bail pending appeal are well established. They were recently restated by this Court in Re Zoudi.[1] Bail pending appeal will only be granted if exceptional circumstances are shown. In Re Zoudi, the applicant would have served his entire non-parole period before his application for leave to appeal could be heard. That, together with a concession by the Crown that the appeal was 'not without prospects of success', led to bail being granted.

6 The principal ground of the present application was that the applicant had strong prospects of success on her appeal against conviction. She points to a number of grounds of appeal upon which she proposes to rely.

7 It is difficult to form any clear view about the merits of these proposed grounds. There is no transcript as yet of the trial judge's charge to the jury. Yet these grounds proceed upon the assumption that his Honour directed the jury in a particular way. That said, none of the grounds seemed to us to be unarguably bound to succeed. Whether that would in any event have been sufficient to establish exceptional circumstances is a question yet to be resolved by this Court.[2]

8 The fact that an applicant has an arguable ground of appeal against conviction does not, of itself, constitute exceptional circumstances. So much was decided in Re DBA.[3] The same must hold true where there are a number of arguable grounds, as is commonly the case.

9 There is nothing striking about the jury's verdict in this case. There are understandable reasons why they may have rejected the applicant's evidence. For one thing, there was located within a wardrobe in her bedroom a shoe box which contained over $165,000 in cash. The applicant claimed that the shoe box belonged to her boyfriend, and that she knew nothing of the cash. The boyfriend supported that claim. The jury very probably disbelieved him.

10 There was also other evidence which supported the Crown's case against the applicant. Digital scales were found in the unit. So, too, were numerous plastic bags and the off-cuts of plastic packaging. The Crown submitted on the plea that the jury had plainly rejected the applicant's protestations that she had no knowledge of the drugs, and that the prospects of success on any appeal against conviction would be minimal. The applicant challenges that contention, but we need not embark upon resolving that debate. There is nothing in the appeal against conviction that gives rise to exceptional circumstances.

11 The appeal against sentence is an altogether different matter. On the hearing of the application, the Crown drew the Court's attention to what was conceded to be sentencing error on the part of the judge below. This was exemplary conduct on the Crown's part. It appears that his Honour erroneously sentenced the applicant on the footing that the amount of drugs found in her possession represented 80 per cent of the commercial quantity of this drug when, in truth, the figure ought to have been something over 30 per cent.

12 The Crown acknowledged that this error would, of itself, necessitate the quashing of the sentence imposed and require the applicant to be re-sentenced by this Court. Importantly for present purposes, the Crown also - at least tacitly - conceded that in re-sentencing the Court might well impose a head sentence of less than two years and three months, with a consequential reduction in the non-parole period, or might suspend a significant part of any such new sentence. That concession seems to us to have been appropriate.

13 We note further the Crown's concession on the plea that the applicant's involvement in this offence was at the lower end of the spectrum of culpability. Whether that concession was properly reflected in the sentence imposed is a matter that may ultimately have to be determined. In addition, the applicant may have an arguable case in relation to matters of parity.

14 The net effect of the Crown's concessions was to place the Court in a most unusual position. Instead of having to assess the bail application (for Zoudi purposes) by reference to the expiry of the non-parole period as fixed by the sentencing judge, we had to proceed on the basis that - on the worst view for the applicant - her sentence appeal would succeed and on re-sentencing the custodial portion of the sentence (whether fixed as a non-parole period or as the non-suspended portion of a partly-suspended sentence) was very likely to be reduced.

15 The applicant's appeals against conviction and sentence are not likely to be heard until the middle of 2009. By then, she will have served something of the order of 12 months' imprisonment. In these circumstances, we concluded that the Zoudi principle was applicable by analogy. That is, there was a real risk that, by the time the appeal was heard and determined, the applicant would have been in custody for longer than the minimum custodial term which the Court might ultimately fix on the re-sentencing.

16 We concluded that the applicant was thus able to demonstrate exceptional circumstances and, on that basis, granted bail pending appeal.

[2] Re v DBA [2008] VSCA 138, [17] (Maxwell P and Nettle JA).

Poisons and Controlled Substances Act 1981

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