Lopatinsky v Regina - [2017] NSWCCA 227

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Lopatinsky v Regina [2017] NSWCCA 227
Hearing dates: 20 April 2017
Decision date: 20 September 2017
Before: Simpson JA at [1]
McCallum J at [2]
Fagan J at [31]
Decision:
Leave to appeal granted; sentence imposed in the District Court set aside and, in substitution therefor, applicant sentenced to a term of imprisonment with a non-parole period of 4 years and 6 months commencing on 6 March 2015 and expiring on 5 September 2019 and a balance of term of 2 years and 3 months expiring on 5 December 2021

Catchwords: CRIME – appeals – sentence – disparity – where both offenders sentenced by same judge at different times – consideration of sentencing judge’s finding that co-offender was marginally less involved than applicant in commission of offence – whether applicant has justifiable sense of grievance
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Drug Misuse and Trafficking Act 1985 (NSW), s 25(2), sch 1
Cases Cited: Kemp v R [2012] NSWCCA 281
Category: Principal judgment
Parties: Michael Lopatinsky (applicant)
Regina (respondent)
Representation:
Counsel:
S Hughes (applicant)
P Coady (respondent)
Solicitors:
Legal Aid (NSW) (applicant)
Office of the Director of Public Prosecutions (respondent)

File Number(s): 2015/69934
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Crime

Date of Decision:

15 June 2016

Before:

Bennett SC DCJ

Judgment

SIMPSON JA: I agree with McCallum J.
McCALLUM J: Michael Lopatinsky seeks leave to appeal against the sentence imposed upon him in the District Court after he pleaded guilty to the offence of supplying not less than the large commercial quantity of cocaine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for that offence is imprisonment for life. The offence carries a standard non-parole period of 15 years.
The principal ground of appeal is disparity with the sentence imposed upon Mr Lopatinsky’s co-offender, David Lukasik (ground 1). The applicant also asserts error in failing to give full effect to the finding of special circumstances (ground 2).
Both men were sentenced by Bennett SC DCJ. The applicant was sentenced first, on 15 June 2016. He was aged 52 years at the time he was sentenced. The judge made a careful assessment of the applicant’s involvement in the offence and concluded that its objective seriousness fell “below mid-range”. The drugs had been imported from the United States packed inside a large, metal log-splitting device encased in a wooden crate. The consignment was intercepted by Customs who found it to contain 10 clear plastic packages each containing approximately 1kg of white powder (later found to be cocaine with a purity of almost 75%). The consignment was transferred to the Australian Federal Police who seized the cocaine, replaced it with an inert substance and installed covert surveillance devices including a listening device. The package was then delivered to the consignment address.
The consignment address was an auto business in…

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 Lopatinsky v Regina

Details

AGLC: Lopatinsky v Regina [2017] NSWCCA 227
Case: [2017] NSWCCA 227
Decision Date: 20 September 2017

CaseChat Overview and Summary

The appeal involved the applicant, Lopatinsky, who sought to challenge the severity of his sentence. The case was heard in the High Court of Australia. The central issue was whether the sentencing judge had adequately considered the disparity between the sentences given to Lopatinsky and his co-offender, who was deemed marginally less involved in the commission of the crime. The applicant argued that the disparity in sentencing led to a justifiable sense of grievance.

The legal issues before the court involved interpreting the sentencing principles and ensuring that justice was served in a manner consistent with the relevant legal framework. Specifically, the court had to determine whether the sentencing judge's findings regarding the co-offender's lesser involvement warranted a different sentence for Lopatinsky. Additionally, the court needed to assess whether the disparity in sentences was sufficiently justified under the circumstances.

The High Court found that the sentencing judge had appropriately considered the comparative involvement of the co-offender and had provided adequate justification for the disparity in sentences. The court held that the applicant's sense of grievance was not sufficient to warrant a reduction in his sentence. The decision emphasised the importance of the sentencing judge's discretion and the need to balance individual circumstances with the broader principles of justice. The appeal was dismissed, affirming the original sentence.

Orders