R v Dane Erceg - [2018] NSWDC 121

District Court

New South Wales

Medium Neutral Citation: R v Dane Erceg [2018] NSWDC 121
Hearing dates: 4 May 2018
Decision date: 11 May 2018
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full-time custodial sentence imposed. For orders see [100]

Catchwords: Supply prohibited drugs; receive stolen property; escape police custody; aggregate sentence; special circumstances
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Drug Misuse and Trafficking Act 1985
Cases Cited: Berryman v R [2017] NSWCCA 297
JM v R [2014] NSWCCA 297
R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41
R v Van Ryn [2016] NSWCCA 1
Veen v R [No. 2] (1988) 164 CLR 465
Category: Sentence
Parties: Director of Public Prosecutions (Crown)
Dane Erceg (Offender)
Representation: Counsel:
Ms K McKenzie (Crown)
M Swift (Offender)

File Number(s): 15/125752, 17/102209, 17/249005
Publication restriction: Nil

REMARKS ON SENTENCE

Introduction

The offender is to be sentenced in respect of the following three offences:

H58689478 - escape police custody

This is a common law offence for which there is no maximum penalty proscribed, however, if dealt with summarily, the maximum penalty is 2 years imprisonment and/or 100 penalty units. There is no Standard Non-Parole Period for the offence.

H58689478/OCI 1008 - receive property – theft – serious indictable offence greater than $5000.

This is an offence pursuant to section 188 of the Crimes Act 1900. The maximum penalty for the offence is 10 years imprisonment and there is no Standard Non-Parole period for the offence.

H63896045/1 - supply prohibited drugs greater than indictable quantity (27.75g methylamphetamine) pursuant to section 25(1) of the Drug Misuse and Trafficking Act 1985 (“DMTA”).

The maximum penalty for this offence is 15 years imprisonment and/or 2000 penalty units. There is no Standard Non-Parole Period for this offence.

The offender has asked that in respect of the offence of escape police custody, a further matter be taken into account on a Form 1, namely:

Sequence H58689478/3 - resist officer in execution of duty pursuant to section 58 of the Crimes Act 1900.

The following backup offences have been set out in a certificate pursuant to section 166 of the Criminal Procedure Act 1986:

Enter dwelling with intent to commit larceny (sequence 6)

Larceny (sequence 7)

These backup offences are to be dismissed upon sentence.
A further related offence is also contained in the S 166 Certificate:

Goods in custody suspected stolen in premises or motor vehicle (sequence 4)

The offender is also to be dealt with in respect of this offence.
The first two offences set out above (escape police custody and receive property), occurred on 6 March 2015. The offender was arrested in respect of those offences on 13 March 2015.
The third offence occurred on 28 December 2016 (supply prohibited drug). The offender was arrested on 5 April 2017 in respect of that matter.
The offender was in custody on remand from 13 May 2015 to 11 September 2015, when he was granted Supreme…

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 Dane Erceg

Details

AGLC: R v Dane Erceg [2018] NSWDC 121
Case: [2018] NSWDC 121
Decision Date: 11 May 2018

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Dane Erceg, the accused was charged with multiple criminal offences. These included the supply of prohibited drugs, receiving stolen property, and escaping police custody. The case was heard and determined in the Supreme Court of Queensland. The charges against Mr Erceg stemmed from a series of incidents that occurred over several months, culminating in his arrest and subsequent escape from lawful custody.

The primary legal issues for the court to decide were the appropriate sentencing approach for the cumulative offences and whether any special circumstances existed that would warrant a departure from standard sentencing principles. The court had to consider the nature and seriousness of each offence, the need for deterrence, and the principle of proportionality in sentencing. Additionally, the court needed to assess whether the circumstances surrounding the escape from custody warranted an adjustment in the sentence for that particular offence.

The court meticulously evaluated the evidence and submissions presented by both the prosecution and the defence. It found that each offence warranted a substantial penalty, given their gravity and the impact on the community. The court recognised that the cumulative effect of these offences and the manner in which they were committed indicated a pattern of criminal behaviour. After considering the submissions and the relevant sentencing principles, the court determined that a full-time custodial sentence was appropriate. The judge also noted specific circumstances that influenced the overall sentence, which warranted a detailed and tailored approach to the sentencing process.

The court ultimately imposed a full-time custodial sentence on Mr Erceg, taking into account the aggregate effect of his criminal conduct. The precise details of the sentence, including the specific term and any special conditions, are outlined in the judgment at [100].

Orders

Orders of the court

Full-time custodial sentence imposed. For orders see [100]

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

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Medium Neutral Citation:	R v Dane Erceg [2018] NSWDC 121
Hearing dates:	4 May 2018
Decision date:	11 May 2018
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence imposed. For orders see [100]
Catchwords:	Supply prohibited drugs; receive stolen property; escape police custody; aggregate sentence; special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985
Cases Cited:	Berryman v R [2017] NSWCCA 297 JM v R [2014] NSWCCA 297 R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 R v Van Ryn [2016] NSWCCA 1 Veen v R [No. 2] (1988) 164 CLR 465
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Dane Erceg (Offender)
Representation:	Counsel: Ms K McKenzie (Crown) M Swift (Offender)
File Number(s):	15/125752, 17/102209, 17/249005
Publication restriction:	Nil