Nastoski v The Queen - [2010] NSWCCA 187

New South Wales
Court of Criminal Appeal

CITATION: Nastoski v R [2010] NSWCCA 187
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 13 August 2010

JUDGMENT DATE:
10 September 2010

JUDGMENT OF: McClellan CJatCL at 1; Hulme J at 2; Davies J at 3

DECISION: 1. Leave to appeal granted. 2. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - conspiracy to manufacture controlled drugs - relative roles of co-conspirators - parity of sentencing - whether reasons for different sentences for co-conspirators were adequate - no basis for a justifiable sense of grievance.

LEGISLATION CITED: Criminal Code Act 1995 (Cth)
Crimes Act 1914 (Cth)

CATEGORY: Principal judgment

CASES CITED: Pettitt v Dunkley [1971] I NSWLR 376
R v Cook (unreported – Court of Criminal Appeal – 12 December 1991)
R v Julie Anne Duffy [1999] NSWCCA 321
R v Olbrich (1999) 199 CLR 270
Tyler v Regina; Regina v Chalmers [2007] NSWCCA 247

PARTIES: Vance Nastoski (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/15041

COUNSEL: C Steirn SC & T Jones (Applicant)
N Adams (Respondent)

SOLICITORS: The Law Practice (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/15041

LOWER COURT JUDICIAL OFFICER: Zahra DCJ

LOWER COURT DATE OF DECISION: 22 May 2009

- 1 -

2007/15041

MCCLELLAN CJ AT CL, HULME RS & DAVIES JJ

10 SEPTEMBER 2010

NASTOSKI V R

Judgment

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

2 RS HULME J: I agree with the orders proposed by Davies J and with his Honour's Reasons.

3 DAVIES J: On 19 February 2008 the Appellant pleaded guilty to the offence of conspiracy to manufacture a commercial quantity of a controlled drug, being amphetamine, contrary to ss 305.3(1) and 11.5(1) of the Criminal Code Act 1995 (Cth). The maximum penalty is imprisonment for life and/or a fine not exceeding $825,000.

4 On 22 May 2009 the Applicant was sentenced by Judge Zahra to 11 years 6 months imprisonment with a non-parole period of 7 years 8 months commencing on 7 April 2006 and expiring on 6 December 2013.

5 The Applicant was one of four persons sentenced in respect of their roles in the conspiracy. Two of the other offenders, Kane Jarrod Holland and Benjamin Franciscus Wuyts, were sentenced by Judge Zahra, and the fourth offender, Scott David Alve was sentenced by Judge Geraghty.

6 Mr Holland also pleaded guilty to the same offence with which the Appellant was charged. Judge Zahra sentenced him to a period of 10 years and 6 months with a non-parole period of 7 years.

7 Judge Geraghty sentenced Mr Alve on 29 February 2008. He was similarly charged with conspiracy to manufacture a commercial quantity of a prohibited drug. He was also charged pursuant to s 306(2) of the Criminal Code Act that he conspired to pre-traffic in a substance being a controlled precursor (safrole) of a commercial quantity.…

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 Nastoski v The Queen

Details

AGLC: Nastoski v The Queen [2010] NSWCCA 187
Case: [2010] NSWCCA 187
Decision Date: 10 September 2010

CaseChat Overview and Summary

In the case of Nastoski v The Queen, the appellant challenged his sentence following his conviction for conspiracy to manufacture controlled drugs. The case was heard in the High Court of Australia, where the appellant sought to overturn his sentence on the basis that it was disproportionately severe compared to those of his co-conspirators. The appellant argued that the trial judge failed to provide adequate reasons for the disparity in sentences between him and his co-conspirators, leading to a sense of injustice.

The central legal issue before the court was whether the trial judge's reasons for sentencing the appellant to a more severe penalty than his co-conspirators were sufficient and whether these reasons could justify the appellant's sense of grievance. The court examined the principles of parity in sentencing and the need for transparency in the sentencing process to ensure that the reasons provided were both rational and adequate to justify the differences in sentences. The appellant contended that the lack of detailed reasons undermined the fairness of the sentencing process.

The court found that the trial judge provided adequate reasons for the differing sentences, focusing on the respective roles of each co-conspirator in the conspiracy. The judge considered the appellant's significant involvement in the planning and execution of the drug manufacturing operation, which justified a harsher sentence. The court held that the reasons provided were sufficient to justify the disparity and did not leave the appellant with a justifiable sense of grievance. Consequently, the appeal against the sentence was dismissed.

Orders