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Hristovski v R

Hristovski v R

Case [2010] NSWCCA 129 23 June 2010

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New South Wales
Court of Criminal Appeal

CITATION: Hristovksi v R [2010] NSWCCA 129

HEARING DATE(S): 2 June 2010

JUDGMENT DATE:
23 June 2010

JUDGMENT OF: McClellan CJatCL at 1; Grove J at 2; Johnson J at 3

DECISION: Leave to appeal against sentence granted. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - sentence - supply large commercial quantities of MDMA and amphetamine - supply commercial quantity of MDMA - possession of pistol - standard non-parole period offences - whether error in assessment of objective seriousness of offences - whether sentences manifestly excessive - sentences entirely concurrent - no error in assessment of objective seriousness - relevance to assessment of objective seriousness of drug supply offences that supplier in possession of loaded pistol - sentences not manifestly excessive - fixed terms of imprisonment imposed for two standard non-parole offences in breach of s.45(1) Crimes (Sentencing Procedure) Act 1999 - no ground of appeal relying on this error - no power of Court of Criminal Appeal to intervene unless s.6(3) or s.7(1A) Criminal Appeal Act 1912 apply - erroneous sentences not invalid - error may be corrected under s.43 Crimes (Sentencing Procedure) Act 1999 - appeal dismissed

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985
Firearms Act 1996
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: R v Way [2004] NSWCCA 131; 60 NSWLR 168
Forbes v R [2009] NSWCCA 292
Ali v R [2010] NSWCCA 35
Dunn v R [2010] NSWCCA 128
R v McEvoy [2010] NSWCCA 110
R v Lee [2007] NSWCCA 234
Ly v R [2008] NSWCCA 262
Vu v R [2006] NSWCCA 188
Thalari v R [2009] NSWCCA 170
R v Morgan (1993) 70 A Crim R 368
R v Lao [2003] NSWCCA 315
Markarian v The Queen [2005] HCA 25; 228 CLR 357
R v OPA [2004] NSWCCA 464
R v XX [2009] NSWCCA 115
R v Stankovic [2006] NSWCCA 229
R v Nikolic [2007] NSWCCA 232
R v Stricke [2007] NSWCCA 179
R v Knight and Biyvanua [2007] NSWCCA 283; 176 A Crim R 338
R v Gao and Lim [2007] NSWCCA 353
R v Rice [2004] NSWCCA 384
Leddin v R [2008] NSWCCA 242
SGJ v R [2008] NSWCCA 258
Aguirre v R [2010] NSWCCA 115
R v Dunn [2004] NSWCCA 346
Project Blue Sky Inc v Australia Broadcasting Authority [1998] HCA 28; 194 CLR 355

PARTIES: Jason Hristovksi (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2009/9015

COUNSEL: Mr P Boulten SC (Applicant)
Mr P Miller (Respondent)

SOLICITORS: Leo & Morrison (Applicant)
Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/9015

LOWER COURT JUDICIAL OFFICER: His Honour Judge Conlon SC

LOWER COURT DATE OF DECISION: 23 April 2009

2009/9015

McCLELLAN CJ at CL
GROVE J
JOHNSON J
23 June 2010

HRISTOVSKI v R

Judgment

1 McCLELLAN CJ at CL: I agree with Johnson J.

2 GROVE J: I agree with Johnson J.

3 JOHNSON J: The Applicant, Jason Hristovksi, seeks leave to…

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 Hristovski v R

Details

AGLC: Hristovski v R [2010] NSWCCA 129
Case: [2010] NSWCCA 129
Decision Date: 23 June 2010

CaseChat Overview and Summary

In the Court of Criminal Appeal, the appellant, Hristovski, sought to appeal against the sentences imposed by the District Court for various drug supply and possession offences. Hristovski was found guilty of supplying large commercial quantities of MDMA and amphetamine, as well as the supply of a commercial quantity of MDMA, and the possession of a pistol. The legal issues before the court involved the assessment of the objective seriousness of the offences, whether the sentences were manifestly excessive, and if there was an error in the imposition of concurrent sentences for the standard non-parole period offences. Additionally, the court had to consider whether the error in the imposition of fixed terms of imprisonment could be a ground for appeal.

The court found that there was no error in the assessment of the objective seriousness of the drug supply offences, particularly in light of the fact that Hristovski was in possession of a loaded pistol during the commission of these offences. The sentences imposed were deemed not to be manifestly excessive given the nature and circumstances of the offences. Although the sentences were imposed for standard non-parole period offences in a manner that breached section 45(1) of the Crimes (Sentencing Procedure) Act 1999, the court held that this did not constitute a ground for appeal. The Court of Criminal Appeal has no power to intervene unless the provisions of section 6(3) or section 7(1A) of the Criminal Appeal Act 1912 apply. Consequently, the erroneous sentences were not invalid and could be corrected under section 43 of the Crimes (Sentencing Procedure) Act 1999. The appeal was ultimately dismissed.

The court's final orders were that the appeal against sentence was dismissed, and the convictions and sentences imposed by the District Court were affirmed. The court emphasized that the error in the imposition of fixed terms of imprisonment did not render the sentences invalid, and any necessary corrections could be made under the relevant legislation. The appellant's appeal was therefore without merit, and the original sentences stood as imposed.

Orders