R v Bigic - [2000] NSWCCA 9

CITATION: Regina v Bigic [2000] NSWCCA 9

FILE NUMBER(S): CCA 60163/99

HEARING DATE(S): 3 December 1999

JUDGMENT DATE:
11 February 2000

PARTIES :

Crown (Commonwealth) (Respondent)
Bogdan BIGIC (Applicant)

JUDGMENT OF: Wood CJ at CL at 1; Sully J at 2; Simpson J at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0391

LOWER COURT JUDICIAL
OFFICER : Coleman DCJ

COUNSEL : W Roser - Crown
P Byrne SC - Applicant

SOLICITORS: Commonwealth Director of Public Prosecutions - Respondent
Murphy's Lawyers - Applicant

LEGISLATION CITED: Crimes Act 1914 (Cth)
Customs Act 1901 (Cth)

CASES CITED:
R v Lowe (1984) 154 CLR 606
R v Wong and Leung [1999] NSWCCA 420, unreported

DECISION: Leave to appeal granted - appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

6016399

WOOD CJ at CL
SULLY J

SIMPSON J

11 February 2000

REGINA v Bogdan BIGIC

Judgment

WOOD CJ AT CL:

1    I have had the advantage of reading in draft the reasons for judgment of Simpson J. I agree with her reasons and the orders she proposes.

**********
IN THE COURT OF
CRIMINAL APPEAL

6016399

WOOD CJ at CL
SULLY J

SIMPSON J

11 February 2000

REGINA v Bogdan BIGIC

Judgment

SULLY J:

2    I agree with Simpson J

**********
IN THE COURT OF
CRIMINAL APPEAL

6016399

WOOD CJ at CL
SULLY J

SIMPSON J

11 February 2000

REGINA v Bogdan BIGIC

Judgment

SIMPSON J :

3 On 8 April 1999 following his plea of guilty to a charge of being knowingly concerned in the importation of prohibited imports the applicant was sentenced by Judge Coleman in the District Court to imprisonment for nine years with a non parole period of six years. In arriving at that sentence Judge Coleman took into account the provisions of s 16G of the Crimes Act 1914 (Cth) and made the necessary adjustment. The applicant seeks leave to appeal the sentence imposed.
4    The applicant flew to Melbourne from Los Angeles in February 1998 and drove from there to Sydney in order to meet two women, Diana Popescu and Jennifer Howard, and Thomas Marchando, all of whom travelled by air from Los Angeles arriving in Sydney on 14 February 1998. Strapped to the legs of the two women were a number of packages containing a large quantity of methorphan and methylamphetamine, both substances the importation of which is prohibited by s 233B of the Customs Act 1901 (Cth). On the Crown case Marchando was travelling in company with the two women for security purposes. The two women and Marchando were apprehended at Sydney airport. The women immediately admitted their involvement and co-operated with the investigating authorities. The applicant was arrested at Melbourne airport on 3 March 1998, intending to depart Australia for Los Angeles.
5    Popescu and Howard pleaded guilty to charges of importing not less than the trafficable quantity of the drugs on 24 April 1998 and were sentenced by Judge Morgan, each to imprisonment for three and a half years with a…

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 R v Bigic

Details

AGLC: R v Bigic [2000] NSWCCA 9
Case: [2000] NSWCCA 9
Decision Date: 11 February 2000

CaseChat Overview and Summary

The Court of Criminal Appeal heard an application for leave to appeal a sentence imposed by the District Court on Bogdan Bigic, who had pleaded guilty to being knowingly concerned in the importation of prohibited drugs. The Court was tasked with determining whether the sentence imposed was manifestly excessive and whether it was disproportionate when compared with the sentences given to co-offenders, considering factors such as the amount of drugs involved and the respective roles of the offenders. The appeal was heard by Wood CJ at CL, Sully J, and Simpson J, with Simpson J delivering the lead judgment, which was concurred in by the other judges.

The Court considered the roles of the applicant and his co-offenders in the drug importation scheme. The applicant argued that his sentence was disproportionate compared to the sentences of the two female co-offenders, despite their cooperation with authorities and earlier pleas of guilty. The Court found that the applicant's role as a mid-level participant, contrasted with the courier role of the women, justified a significant difference in sentencing. The Court also noted the timing of the pleas and the evidence of contrition, which further supported the sentence imposed on the applicant.

In examining the nature of the drugs and the appropriate penalty, the Court recognised the quantity of drugs involved was substantial and categorised the drugs as mid-range, aligning with the sentencing guidelines for similar offences. The Court concluded that the sentence imposed on the applicant was within the appropriate range, taking into account the guideline sentences for high-range drugs and making adjustments for the lower-range drugs involved in this case. The Court determined that no other grounds for interference with the sentence were present.

The Court granted leave to appeal but dismissed the appeal, affirming the sentence imposed by the District Court. The judges upheld the sentence as appropriate and proportionate to the offence and the applicant's role within it.

Orders