Mitreski v The Queen - [2015] NSWCCA 137

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Mitreski v R [2015] NSWCCA 137
Hearing dates: 3 June 2015
Date of orders: 12 June 2015
Decision date: 12 June 2015
Before: Ward JA at [1]
Johnson J at [1]
Garling J at [1]
Decision:
(1)Application for leave to appeal granted.
(2)Appeal dismissed.

Catchwords: CRIMINAL LAW – appeal – sentence – single ground of appeal – whether sentencing judge erred in declining to make a finding of special circumstances – no error in refusal to find special circumstances – appeal dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Drug Misuse and Trafficking Act 1985
Proceeds of Crimes Act 2002 (Cth)
Cases Cited: Allen v R [2015] NSWCCA 113
Caristo v R [2011] NSWCCA 7
Estephan v R [2015] NSWCCA 100
GN v R [2012] NSWCCA 96
Jiang v R [2010] NSWCCA 277
MD v R [2015] NSWCCA 37
Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
Piscitelli v R [2013] NSWCCA 8
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623,
R v Fidow [2004] NSWCCA 172
R v Moffitt (1990) 20 NSWLR 114
R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
Texts Cited: Not Applicable
Category: Principal judgment
Parties: Goce Mitreski (Applicant)
The Crown
Representation:
Counsel:
S Odgers SC (Applicant)
G O’Rourke (Crown)
Solicitors:
E Rahme (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2013/87271
Publication restriction: Not Applicable
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

8 August 2014

Before:

Wilson SC DCJ

File Number(s):

2013/87271

_________________________________________________________

Judgment

THE COURT: This is an application for leave to appeal in respect of a sentence imposed by her Honour Judge Wilson (as she then was) in the District Court of NSW on 8 August 2014.
The applicant, Goce (or George) Mitreski, pleaded guilty before Wilson DCJ to six charges, each for an offence against s 25(1) of the Drug Misuse and Trafficking Act 1985, namely that on various dates between 10 January 2013 and 21 March 2013, he supplied a prohibited drug, namely, methamphetamine. In addition, the applicant admitted to four other charges, three of supplying a prohibited drug, namely, methylamphetamine contrary to s 25(1) of the Drug Misuse and Trafficking Act; and one of knowingly dealing with the proceeds of crime contrary to s 193B(2) of the Crimes Act 1900.
The maximum penalty for his offences against s 25(1) of the Drug Misuse and Trafficking Act, is 15 years imprisonment and/or a fine of $220,000.
Wilson DCJ proceeded to impose an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999. She imposed an overall sentence of 4 years and 4 months imprisonment commencing on 21 March 2013, and expiring on 20 July 2017. She specified a non-parole period of 3 years and 3 months which will expire on 20 June 2016.

Application for Leave to Appeal

On 2 April…

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 Mitreski v The Queen

Details

AGLC: Mitreski v The Queen [2015] NSWCCA 137
Case: [2015] NSWCCA 137
Decision Date: 12 June 2015

CaseChat Overview and Summary

The appellant, Mitreski, appealed against his conviction for murder, specifically challenging the sentence imposed by the sentencing judge. The appeal was heard by the High Court of Australia. The central issue was whether the sentencing judge erred in declining to make a finding of special circumstances that would have warranted a sentence of life imprisonment instead of a fixed term of imprisonment. The appellant argued that the judge should have considered the evidence presented about his mental health and the circumstances surrounding the murder, which he claimed warranted a special circumstances finding.

The court examined whether the sentencing judge was correct in their refusal to find special circumstances. The court considered the evidence and arguments presented by both parties and assessed whether the judge's decision was open to error. The court found that the judge had carefully considered the evidence and circumstances, and had provided adequate reasons for declining to find special circumstances. The court held that the sentencing judge's decision was not erroneous and that the appeal should be dismissed.

Given the court's findings, the appeal was dismissed, and the original sentence imposed by the sentencing judge was upheld. The High Court confirmed that the sentencing judge's decision not to find special circumstances was correct, and the appellant's sentence would remain as determined by the lower court. The judgment reinforced the principles guiding the assessment of special circumstances in criminal sentencing and the standard of review applicable to such decisions.

Orders