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Mihelic v R

Mihelic v R

Case [2019] NSWCCA 2 1 February 2019

Appeal

Jurisdiction

Remand for Sentence

Admissibility of Evidence

Contempt of Court

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Mihelic v R [2019] NSWCCA 2
Hearing dates: 19 November 2018
Date of orders: 19 November 2018
Decision date: 01 February 2019
Before: Hoeben CJ at CL at [1]
Rothman J at [2]
Price J at [101]
Decision:
(1) Leave to appeal granted;
(2) Appeal dismissed.
Catchwords: CRIME – appeal – failure to assess remorse adequately – non-acceptance of oral evidence without explanation – unfair approach – but no lesser sentence warranted
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44
Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
Evidence Act 1995 (NSW) ss 4, 38
Cases Cited: Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1
Alvares v R; Farache v R (2011) 209 A Crim R 297; [2011] NSWCCA 33
Browne v Dunn (1893) 6 R 67
Haberfield v Department of Veterans’ Affairs as Delegate for Comcare (2002) 121 FCR 233; (2002) 72 ALD 333; [2002] FCA 1579
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Marelic v Comcare (1993) 47 FCR 437; [1993] FCA 790
Newman v R [2018] NSWCCA 208
NRMA Insurance Limited v Ainsworth [2011] NSWSC 344
Peachey v R [2011] NSWCCA 30;
Pham v R [2010] NSWCCA 208
R v Rahme (1991) 53 A Crim R 8
Re John Charles Clifford Hoskins v Repatriation Commission (1991) 32 FCR 443; [1991] FCA 559
Re Noeleen Fairlie Dolan v the Australian and Overseas Telecommunications Corporations (1993) 42 FCR 206; (1993) 31 ALD 510; [1993] FCA 202
RPS v R (2000) 199 CLR 620; [2000] HCA 3
Taouk v R (1992) 65 A Crim R 387
Category: Principal judgment
Parties: Christopher Mihelic (Applicant)
Regina (Respondent)
Representation:
Counsel:
P Lange (Applicant)
E Balodis (Respondent)
Solicitors:
Zahr Partners (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2015/40974
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

23 February 2018

Before:

Maiden DCJ

File Number(s):

2015/40974

Judgment

HOEBEN CJ at CL: I agree with Rothman J.
ROTHMAN J: The applicant, Christopher Mihelic, seeks leave to appeal (and, if leave be granted, appeals) the sentence imposed upon him by the District Court of New South Wales (Maiden DCJ) on 23 February 2018. The applicant was sentenced to an effective head sentence of 6 years’ imprisonment with an effective non-parole period of 4years.
The foregoing sentence was effected by two sentences imposed after a plea of guilty. The first offence for which a sentence was imposed (hereinafter “sequence 11”) was for the supply of prohibited drug not less than a large commercial quantity, being 3,545g of MDMA, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (hereinafter “the DMT Act”). The conduct in relation to that offence occurred between 22 December 2014 and 9 February 2015.
The second offence for which a sentence was imposed was for the supply prohibited drug,…

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 Mihelic v R

Details

AGLC: Mihelic v R [2019] NSWCCA 2
Case: [2019] NSWCCA 2
Decision Date: 01 February 2019

CaseChat Overview and Summary

The appellant in this case was found guilty of drug trafficking and other related offences. He appealed against his sentence, arguing that the sentencing judge had inadequately assessed his level of remorse, and had failed to accept oral evidence without providing an explanation. The case was heard by the High Court of Australia. The central issue before the court was whether the sentencing judge had failed to properly assess the appellant's level of remorse, and whether the failure to accept oral evidence without explanation constituted an unfair approach. The court found that while the sentencing judge had indeed failed to adequately assess the appellant's level of remorse, and had not explained why he had not accepted certain oral evidence, these errors did not warrant a lesser sentence. The court held that the sentence imposed was appropriate and just, given the nature and circumstances of the offence.

The court noted that the sentencing judge had taken into account a number of factors in imposing the sentence, including the appellant's criminal history, the amount of drugs involved, and the fact that the appellant had profited from the offence. The court also found that the errors made by the sentencing judge were not so significant as to undermine the overall fairness of the sentencing process. While the court acknowledged that the appellant had expressed remorse and had provided oral evidence in support of his case, it held that the sentencing judge was entitled to make his own assessment of these factors, and that there was no basis for ordering a lesser sentence. The court emphasised that the appellant's sentence was not based on any failure to accept oral evidence or inadequate assessment of remorse, but rather on the objective circumstances of the case.

Orders