NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION:
Prculovski v R [2010] NSWCCA 274
FILE NUMBER(S):
2009/10240
HEARING DATE(S):
3 November 2010
JUDGMENT DATE:
1 December 2010
PARTIES:
Goce Prculovski - Applicant
Crown - Respondent
JUDGMENT OF:
McClellan CJatCL Schmidt J Howie AJ
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
2009/10240
LOWER COURT JUDICIAL OFFICER:
Goldring DCJ
LOWER COURT DATE OF DECISION:
14 August 2009
COUNSEL:
Mr T Gartelmann - Applicant
Mr J Pickering - Crown
SOLICITORS:
Applicant - William O'Brien & Ross Hudson Solicitors
Crown - Director of Public Prosecutions
CATCHWORDS:
CRIMINAL LAW - appeal against sentence - ss 25 and 25A of Drug Misuse and Trafficking Act 1985 - s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 - whether trial judge erred in final offences were aggravated by reason of being committed as part of planned and organised criminal activity and for financial gain - error not established - no other sentence warranted as a matter of law - leave to appeal granted - appeal dismissed
LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
CATEGORY:
Principal judgment
CASES CITED:
Bowden v The Queen [2009] NSWCCA 45
Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41
Re Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; (2002) 56 NSWLR 146
R v Bavadra [2000] NSWCCA 292; (2000) 115 A Crim R 152
R v Cheikh [2004] NSWCCA 448
R v Henry & Others [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v MMK (2006) 164 A Crim R 481; (2006) NSWCCA 272
R v Wilhelm [2010] NSWSC 378
Thorne v The Queen [2007] NSWCCA
TEXTS CITED:
DECISION:
Leave to appeal be granted, but the appeal be dismissed.
JUDGMENT:
- 15 -
IN THE COURT OF
CRIMINAL APPEAL
2009/10240
McCLELLAN CJ AT CL
SCHMIDT J
HOWIE AJWEDNESDAY, 1 DECEMBER 2010
PRCULOVSKI v R
JUDGMENT
McCLELLAN CJ: I agree with Schmidt J and the extra remarks of Howie AJ.
SCHMIDT J: The applicant seeks leave to appeal against sentences imposed by Goldring J in the District Court on 14 August 2009. He pleaded guilty and was sentenced as follows:
Section 62(1)(b) - Firearms Act 1996 – possess shortened firearm without authority – maximum penalty 10 years. Sentenced to a fixed term of 2 years from 28 November 2008 to 27 November 2010
Section 25A(1) - Drug Misuse and Trafficking Act 1985 - supply prohibited drugs on an ongoing basis between 11 June 2008 and 10 July 2008 – maximum penalty 20 years. 11 matters were taken into account on a form 1 under s 32 of the Crimes (Sentencing Procedure) Act 1999. Sentenced to a non parole period of 2 years 3 months from 28 August 2009 to 27 November 2011 and a parole period of 2 year and 3 months from 28 November 2011 to 27 February 2014…
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- AGLC
- Prculovski v R [2010] NSWCCA 274
- Case
- [2010] NSWCCA 274
- Decision Date
CaseChat Overview and Summary
In evaluating the appeal, the Court of Criminal Appeal considered the legal principles that underpin sentencing, including the objectives of punishment and the need for proportionality. The court examined the trial judge's reasoning and the evidence presented, which indicated that Prculovski's drug offences were part of a well-planned operation and were motivated by financial gain. The court concluded that the trial judge had not erred in his assessment of the aggravating factors and that the sentence imposed, which was 4 years and 6 months with a non-parole period of 2 years and 3 months, was appropriate given the circumstances of the case. The court found that Prculovski had not established that any error was made by the trial judge and that no other sentence was warranted as a matter of law.
The outcome of the appeal was that it was dismissed, and the original sentence imposed by the trial judge was upheld. The court's decision underscored the importance of considering all relevant factors in sentencing, including the nature of the offence, the role of the offender, and the objectives of sentencing. The court's ruling also highlighted the principle that sentencing decisions are within the discretion of the trial judge, provided they are made in accordance with the law and are supported by the evidence.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The Crown argued that these statistics were unhelpful, particularly given that in the s 25A offence, eleven other offences had to be taken into account in determining penalty. It was also argued that if it was concluded that this ground of the appeal was upheld, it would nevertheless be concluded that no other sentence was warranted at law.Consideration It seems to me that the applicant has failed to establish that his Honour erred, either in finding that the offences were aggravated by reason of being committed as part of planned and organised criminal activity, or that they were for financial gain. The sentencing exercise had to be conducted in accordance with the requirements of s 3A of the Crimes (Sentencing Procedure) Act. It provides:"3A Purposes of sentencingThe purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence,(b) to prevent crime by deterring the offender and other persons from committing similar offences,(c) to protect the community from the offender,(d) to promote the rehabilitation of the offender,(e) to make the offender accountable for his or her actions,(f) to denounce the conduct of the offender,(g) to recognise the harm done to the victim of the crime and the community." The fundamental principle underpinning the sentencing exercise is that the sentence imposed must reflect the objective seriousness of the offence and that there must be a reasonable proportionality between the sentence passed and the circumstances of the crime committed (see R v Scott [2005] NSWCCA 152 at [15]). The question of whether his Honour erred in taking into account financial gain as an aggravating factor in the s 25A offence cannot determined simply by having regard to his Honour’s remarks on sentencing. Whether his Honour committed the error alleged is not apparent from what he there said, which on any view was perplexing. What he intended by the remarks to which the parties referred is not apparent. Nevertheless, I am not convinced that this, or indeed the other errors alleged were made. The penalty of 4 years and 6 months, with a non-parole period of 2 years and 3 months which his Honour imposed for the s 25A offence does not support the conclusion urged for the applicant. On the applicant’s own evidence these drug offences were committed for financial gain and as the result of the applicant’s involvement in a well planned drug operation, albeit as a lower rung operative. Albeit for different reasons, this evidence was relevant to all of the drug offences with which the applicant was charged. As discussed in R v Cheikh [2004] NSWCCA 448 at [105] in relation to a s 25A offence:"... Parliament has chosen to define the offence by reference to the time span of a month. An offender enhances his criminality by choosing to continue his activities month by month." The maximum penalty for this offence was 20 years. The sentence imposed had to have regard to the nature of the five supplies in question, the aggravating and mitigating factors revealed on the evidence and also had to take into account 11 other offences on the Form 1, including one which itself attracted a maximum 15 years sentence.