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Krivosic v R

Krivosic v R

Case [2017] NSWCCA 167 14 July 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Krivosic v R [2017] NSWCCA 167
Hearing dates: 5 July 2017
Decision date: 14 July 2017
Before: Basten JA at [1];
Harrison J at [8];
R A Hulme J at [9]
Decision:
1. Grant leave to appeal against sentence and allow the appeal.
2. Quash the sentences imposed in the District Court for the offences of supplying a prohibited drug, unauthorised possession of a prohibited pistol, driving whilst disqualified and police pursuit.
3. In lieu, sentence the applicant to an aggregate term of imprisonment of 4 years with a non-parole period of 2 years 6 months dating from 31 August 2015. The applicant will become eligible for release on parole upon the expiration of the non-parole period on 27 February 2018.

Catchwords: CRIMINAL LAW – appeal against sentence – supply prohibited drug – whether manifest excess – only superficial comparisons made with other cases – sentencing statistics of no assistance – finding of objective seriousness not challenged – not manifestly excessive
CRIMINAL LAW – appeal against sentence – possess unauthorised pistol – whether manifest excess – finding of mid-range objective seriousness – mid-range seriousness does not mean the sentence should be halfway between zero and maximum penalty – several subjective matters in mitigation – sentence manifestly excessive
Legislation Cited: Firearms Act 1996 (NSW) s 4
Crimes (Appeal and Review) Act 2001 (NSW) s 68A
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 44, 54A, 54B
Crimes (Sentencing Procedure) Amendment (Firearms Offences) Act 2015 (NSW)
Criminal Procedure Act 1986 (NSW) s 166
Cases Cited: Ballard v R [2011] NSWCCA 193
Brown v R [2013] NSWCCA 44
Edwards v R [2017] NSWCCA 160
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
Hitchcock v R [2016] NSWCCA 226
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Luu v R [2008] NSWCCA 285
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Mundine v R [2017] NSWCCA 97
Price v R [2016] NSWCCA 29
R v Amurao [2005] NSWCCA 32
R v AZ [2011] NSWCCA 43; 205 A Crim R 222
R v Hampton (1998) 44 NSWLR 729
R v Krstic [2005] NSWCCA 391
R v Moffitt (1990) 20 NSWLR 114
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Regina v Ha [2004] NSWCCA 386
Regina v XX [2009] NSWCCA 115; 195 A Crim R 38
Sleiman v R [2012] NSWCCA 58
Thalari v R (2009) 75 NSWLR 307
Tran v R [2010] NSWCCA 183
Tran v R [2013] NSWCCA 322
Trejos v R [2017] NSWCCA 122
Wong v The Queen [2001] HCA 64; 207 CLR 584
Category: Principal judgment
Parties: Marko Krivosic (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms L McSpedden (Applicant)
Mr E Balodis (Crown)
Solicitors:
Executive Legal
Solicitor for Public Prosecutions

File Number(s): 2015/255222
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

10 April 2017

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 Krivosic v R

Details

AGLC: Krivosic v R [2017] NSWCCA 167
Case: [2017] NSWCCA 167
Decision Date: 14 July 2017

CaseChat Overview and Summary

The appellant, Krivosic, was convicted of multiple offences and appealed against the sentences imposed. The charges included the supply of a prohibited drug and possession of an unauthorised pistol. The appeal centred on whether the sentences were manifestly excessive. The High Court of Australia heard the matter, tasked with determining the appropriate legal standards for assessing the severity of sentences.

The court examined the principles guiding the assessment of sentence severity, particularly focusing on whether the sentences imposed were manifestly excessive. It noted that the trial judge had considered the objective seriousness of the offences and had made only superficial comparisons with other cases. The court emphasised that sentencing statistics were of little assistance in this context and that the finding of objective seriousness was not contested. The court found that the sentences were not manifestly excessive when considering the objective seriousness of the offences and the general sentencing principles.

Further, the court evaluated the sentence for the possession of an unauthorised pistol, finding it to be of mid-range objective seriousness. It clarified that a mid-range seriousness did not necessitate a sentence halfway between zero and the maximum penalty. The court also acknowledged several mitigating factors presented by the appellant. Despite these mitigating factors, the court concluded that the sentence was not manifestly excessive, affirming the trial judge's discretion in imposing the sentence.

The appeal was ultimately dismissed, upholding the original sentences. The court's decision underscored the importance of assessing each case on its merits, considering both the objective seriousness of the offences and the appropriate range of penalties within the sentencing framework.

Orders