Background
Daniel Asanovic pleaded guilty to two prohibited-drug supply charges and was convicted by a jury of a third. He also pleaded guilty on a statutory certificate to three related offences, including knowingly directing the activities of a criminal group. The offending included numerous supplies of methylamphetamine, the supply of a commercial quantity of heroin, and possession for deemed supply of more than 4.9 kilograms of methylamphetamine stored at another person’s home.
The District Court imposed an aggregate sentence of 12 years’ imprisonment, with a non-parole period of eight years. Asanovic sought leave to appeal, arguing principally that the sentencing judge had punished him twice for overlapping conduct when assessing the drug-supply counts and the criminal-group offence. He alternatively argued that the sentencing reasons were insufficient to show that double counting had been avoided.
The Court’s Holding
The Court unanimously held that the sentencing judge had double counted substantially overlapping conduct. The judge relied on Asanovic’s use and direction of others to supply drugs and his storage of drugs at another person’s premises when assessing both the supply offences and the criminal-group offence, without addressing that overlap. The resulting aggregate sentence was therefore determined on an erroneous foundation. The Court explained that double punishment can arise from significant factual overlap even when neither offence wholly encompasses the other, and that indicative sentences may help reveal such an error although they are not themselves appealable sentences.
Despite finding error and granting leave to appeal, the Court dismissed the appeal because no lesser sentence was warranted. Stern JA reached that conclusion after independently reconsidering the sentence, including Asanovic’s serious drug offending, personal circumstances, prison hardship, and further offending in custody. Rigg and Coleman JJ considered that a slightly higher aggregate sentence would have been appropriate and would have assigned a four-month fixed term to the limited distinct criminality in the criminal-group offence. All three judges nevertheless agreed that the existing 12-year sentence should remain undisturbed.
Key Takeaways
- A sentencing court must account for substantial factual overlap between offences and must not punish the same criminality twice.
- Concurrency, totality, or use of an aggregate sentence does not necessarily cure double counting if the sentencing exercise began from a flawed premise.
- An established sentencing error does not guarantee relief: an appellate court may dismiss the appeal after independently concluding that no lesser sentence is warranted.
Why It Matters
The decision clarifies how the rule against double punishment applies to aggregate sentencing, especially where a criminal-group offence rests largely on conduct also used to assess substantive offences. Sentencing judges may address overlap at different stages of the process, but their reasoning and ultimate sentence must demonstrate that shared criminality has not been counted twice.
It also illustrates the distinct appellate inquiry that follows proof of error. Even after identifying double counting, the Court independently reassessed the case and unanimously declined to reduce the sentence.