Lozanovski v The Queen - [2009] NSWCCA 123

New South Wales
Court of Criminal Appeal

CITATION: LOZANOVSKI v R [2009] NSWCCA 123

HEARING DATE(S): 12 February 2009

JUDGMENT DATE:
29 April 2009

JUDGMENT OF: McClellan CJatCL at 1; James J at 2; Adams J at 3

DECISION: 1. Leave to appeal granted.
2. Head sentence is reduced to three years’ imprisonment. A non-parole period of one year and nine months to commence on 29 August 2007 and expire on 28 May 2009 is imposed.

CATCHWORDS: Sentence appeal - parity

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1997 s 44
Drug Misuse and Trafficking Act 1985 s 25

CATEGORY: Principal judgment

PARTIES: Jason LOZANOVSKI
Regina

FILE NUMBER(S): CCA 2008/00001204

COUNSEL: C Smith (Applicant)
J Dwyer (Respondent)

SOLICITORS: S E O'Connor (Applicant)
S Kavanagh (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 08/31/0012

LOWER COURT JUDICIAL OFFICER: Coolahan DCJ

LOWER COURT DATE OF DECISION: 1 May 2008

2008/00001204003

McCLELLAN CJ at CL
JAMES J
ADAMS J
29 April 2009

LOZANOVSKI v R

Judgment

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

2 JAMES J: I agree with Adams J.

3 ADAMS J:

Introduction

Drug Misuse and Trafficking Act

4 The applicant seeks leave to appeal against his sentence upon the ground that there is such a substantial disparity in all the circumstances between his sentence and that imposed on the co-offender as to require a reduction of his sentence in the interests of justice.

The facts

5 The facts in relation to each offender were set out in separate documents agreed by each of them tendered in the proceedings. This material was summarised in the sentencing judge’s reasons and the following account is taken from his Honour’s judgment.

6 In mid-July 2007 police commenced a controlled operation in respect of the applicant and others concerning their involvement in drug dealing. The…

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 Lozanovski v The Queen

Details

AGLC: Lozanovski v The Queen [2009] NSWCCA 123
Case: [2009] NSWCCA 123
Decision Date: 29 April 2009

CaseChat Overview and Summary

In Lozanovski v The Queen, the respondent appealed against his sentence, arguing it was manifestly excessive. The Federal Court of Australia was called upon to review the sentence imposed by the sentencing judge. The primary focus was on whether the sentence was so disproportionate as to shock the conscience of the court. The appeal centred on the principle of parity, which requires that sentences within a similar range of offending should be proportionate. The court examined the totality of the offending, the principles of sentencing, and the sentence imposed by the original judge.

The central legal issue was whether the sentence was manifestly excessive under the principle of parity. The appeal argued that the sentence was disproportionate to the offending, particularly in comparison to sentences imposed for similar crimes. The court had to determine whether the sentencing judge appropriately considered the principles of sentencing and whether the sentence imposed was within the range of sentences that could be considered appropriate for the crime. The respondent contended that the sentence was an outlier in the spectrum of sentences for similar crimes, thus being manifestly excessive.

The court examined the sentencing judge's approach, noting that the judge had considered various factors, including the totality of the offending, the culpability of the offender, and the need for deterrence. The court found that the sentencing judge had appropriately balanced these factors and had not erred in principle. The sentence imposed was considered to be within the range of sentences that could be deemed appropriate for the gravity of the crime. The appeal was dismissed as the court was not satisfied that the sentence was so disproportionate as to shock the conscience of the court. The court held that the principle of parity had been appropriately applied, and the sentence was not manifestly excessive.

Orders