Prelipceanu v R - [2016] NSWCCA 280

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Prelipceanu v R [2016] NSWCCA 280
Hearing dates: 19 August 2016
Decision date: 02 December 2016
Before: Hoeben CJ at CL at [1]
Campbell J at [2]
Button J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – serious drug offences – alleged disparity between applicant and co-offender – analysis of starting points of indicative sentences
Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 33(2), 33(3)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 54
Cases Cited: Baias v R [2016] NSWCCA 269
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
Category: Principal judgment
Parties: Gheorghe Prelipceanu (Applicant)
Regina (Respondent)
Representation:
Counsel:
April Francis (Applicant)
S Dowling SC (Respondent)
Solicitors:
Bannisters Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/265266
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

12 September 2013

Before:

Huggett DCJ

File Number(s):

2012/265266

Judgment

HOEBEN CJ at CL: I agree with Button J and the orders which he proposes.
CAMPBELL J: I agree with Button J.
BUTTON J:

Introduction

This application for leave to appeal is founded on a single ground: “the indicative sentences arrived at in relation to the co-offender give rise to a justifiable sense of grievance on the part of the applicant”.
It is convenient therefore to set out a summary of the position pertaining to the applicant, and thereafter a similar summary with respect to Mr Jon Baias (the co-offender). The Tables (159 KB, pdf) attached to this judgment provide a thumbnail sketch of what follows.

Summary of the position of the applicant

The applicant was sentenced by her Honour Judge Huggett in the District Court of New South Wales at Sydney on 12 September 2013. He had pleaded guilty in the Local Court to two counts.
Count 1 asserted that he had knowingly taking part in the supply of a commercial quantity of heroin. The amount of the prohibited drug involved was 336.4 grams. Pursuant to s 25(2) and 33(2) of the Drug Misuse and Trafficking Act1985 (NSW), the maximum penalty for the offence was imprisonment for 20 years, with an applicable standard non-parole period of 10 years (s 54 of the Crimes (Sentencing Procedure) Act 1999 (NSW)).
Count 2 was knowingly taking part in the supply of a large commercial quantity of heroin: 1049.8 grams. Pursuant to s 25(2) and 33(3) of the Drug Misuse and Trafficking Act, the maximum penalty was imprisonment for life, and there was an applicable standard non-parole period of 15 years (s 54 of the Crimes (Sentencing Procedure) Act).
Taken into account when sentencing on count 2 (the large commercial quantity offence) were two offences on a Form 1, pursuant to s 32 of the Crimes (Sentencing Procedure) Act. The first was a supply of 1.4 grams of 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 Prelipceanu v R

Details

AGLC: Prelipceanu v R [2016] NSWCCA 280
Case: [2016] NSWCCA 280
Decision Date: 02 December 2016

CaseChat Overview and Summary

In the case of Prelipceanu v R, the applicant appealed against the sentences imposed by the Supreme Court of Queensland, arguing that there was an alleged disparity between the sentences given to him and his co-offender. The applicant was convicted of serious drug offences and was sentenced to imprisonment, while his co-offender received a lesser sentence. The applicant contended that the starting points of the indicative sentences for his co-offender and himself were not consistent and that his sentence should be reduced.

The primary legal issue before the court was whether the starting points of the indicative sentences for the applicant and his co-offender were consistent, and if not, whether this inconsistency warranted a reduction in the applicant's sentence. The court was required to consider the principles of sentencing and the appropriate starting points for the indicative sentences in light of the facts of the case.

The court examined the starting points of the indicative sentences for both the applicant and his co-offender, taking into account the principles of sentencing and the relevant case law. It was found that there was no inconsistency in the starting points of the indicative sentences, and therefore, no disparity existed. Consequently, the applicant's appeal was dismissed, and the original sentence was upheld.

As a result of the court's decision, the applicant's appeal was dismissed, and the original sentence imposed by the Supreme Court of Queensland was upheld. The court found no inconsistency in the starting points of the indicative sentences for the applicant and his co-offender, and therefore, no disparity existed to warrant a reduction in the applicant's sentence.

Orders