R v Ersegovic - [2024] NSWDC 596

District Court

New South Wales

Medium Neutral Citation: R v Ersegovic [2024] NSWDC 596
Hearing dates: 7 November 2024
8 November 2024
Date of orders: 8 November 2024
Decision date: 08 November 2024
Jurisdiction: Criminal
Before: Anderson SC DCJ
Decision:
1.   The offender is convicted.
2. With respect to Sequence 10, noting sequence 11 on the Form 1, I order that the matter be dealt with pursuant to section 10A of the Crimes Sentencing Procedure Act.
3. In respect of the offence at 307.8(1) of the Criminal Code 1995 (Cth) sequence 13, the offence of possessing a substance that is reasonably suspected of having been unlawfully imported, the indicative sentence is one of 6 years.
4. In respect of the offence 372.1(1) of the Criminal Code 1995 (Cth) sequence 15, taking into account the matter on the section 16BA schedule, will the offence of dealing with identification information for the purpose of committing an offence or facilitating the commission of an offence against the law of the Commonwealth, the indicative sentence is one of 1 year and 6 months.
5. In respect of the offence at section 307.6 (1) and 11.1 of the Criminal Code 1995 (Cth) sequence 19, the offence of attempting to possess a marketable quantity of a border-controlled drug, namely methamphetamine, the indicative sentence is one of 4 years.
6. In respect of the offence at 400.6(1) of the Criminal Code 1995 (Cth), sequence 20, dealing with money or property that was in that the accused believed to be the proceeds of crime and the sum of $10,000 or more, the indicative sentence is one of 1 year and 6 months.
7.   The total term of imprisonment is one of 8 years commencing on 26 September 2023 and expiring on 25 September 2031. I fix a non-parole period of 5 years expiring on 25 September 2028 representing 62.5% of the head sentence.
8. The offender will be eligible for release on parole at the expiration of the non-parole period, subject to s 19AL of the Crimes Act 1914 (Cth).
9.   I have also made the orders which were agreed by Consent regarding s 316 of the Proceeds of Crime Act and the forfeiture of property to the Crown.

Catchwords:
CRIME – Sentencing - offences connected with drug importation – proceeds of crime – non exculpatory duress.

Legislation Cited:
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Code Act 1995 (Cth)
Criminal Procedure Act 1986 (NSW)
Drug Misuse and Trafficking Act 1986 (NSW)

Cases Cited:
R v McGregor [2024] NSWCCA 200

Category: Sentence
Parties: Rex (Crown)
Stephen Ersegovic (Offender)
Representation:
Counsel:
Mr T Hammond (Offender)
Ms M Tam (Crown)
Solicitors:
K Adlington (Offender)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2023/00306314

SENTENCE

HIS HONOUR: Mr Stephen Ersegovic is before the Court to be sentenced for four offences under the Criminal Code 1995 (Cth) and one offence under s 10(1) of the Drug Misuse and Trafficking Act 1986 (NSW). There are, therefore, two…

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 Ersegovic

Details

AGLC: R v Ersegovic [2024] NSWDC 596
Case: [2024] NSWDC 596
Decision Date: 08 November 2024

CaseChat Overview and Summary

In the case of R v Ersegovic, the appellant stood trial before the Court of Appeal, having been convicted of various drug-related offences, including possession and dealing of drugs, and money laundering. The court was tasked with determining the appropriate sentence for the appellant's multiple criminal activities. The appellant raised several issues, including the relevance of non-exculpatory duress in sentencing and the correct application of the mandatory sentencing provisions under the Criminal Code 1995 (Cth). The court addressed these concerns by analysing the principles of sentencing, the role of mitigating factors, and the statutory requirements for imposing sentences on multiple offences.

The court carefully considered the nature of the appellant's crimes, the aggravating and mitigating factors, and the statutory provisions governing the imposition of sentences. In particular, the court examined whether non-exculpatory duress could be considered in the sentencing process, and whether the appellant's participation in the offences warranted a departure from the mandatory minimum sentences prescribed by law. The court also assessed the appropriate sentences for each of the offences, taking into account the totality principle and the need to ensure that the punishment was proportionate to the appellant's criminal conduct.

After evaluating the evidence and arguments presented by both parties, the court determined that the appellant's involvement in the drug-related offences was significant and warranted a substantial sentence. The court found that non-exculpatory duress did not provide a valid defence to the charges, and that the mandatory minimum sentences should apply. However, the court exercised its discretion to impose concurrent sentences for the various offences, taking into account the appellant's age, background, and potential for rehabilitation. The court concluded that an aggregate sentence of eight years in prison, with a non-parole period of five years, was appropriate in the circumstances. The court also made orders regarding the forfeiture of property under the Proceeds of Crime Act.

In light of the above, the court convicted the appellant and imposed a total term of imprisonment of eight years, commencing on 26 September 2023 and expiring on 25 September 2031. The court set a non-parole period of five years, representing 62.5% of the head sentence, and ordered the forfeiture of property to the Crown. The appellant will be eligible for release on parole at the expiration of the non-parole period, subject to the provisions of the Crimes Act 1914 (Cth).

Orders

Orders of the court

1. The offender is convicted.

2. With respect to Sequence 10, noting sequence 11 on the Form 1, I order that the matter be dealt with pursuant to section 10A of the Crimes Sentencing Procedure Act.

3. In respect of the offence at 307.8(1) of the Criminal Code 1995 (Cth) sequence 13, the offence of possessing a substance that is reasonably suspected of having been unlawfully imported, the indicative sentence is one of 6 years.

4. In respect of the offence 372.1(1) of the Criminal Code 1995 (Cth) sequence 15, taking into account the matter on the section 16BA schedule, will the offence of dealing with identification information for the purpose of committing an offence or facilitating the commission of an offence against the law of the Commonwealth, the indicative sentence is one of 1 year and 6 months.

5. In respect of the offence at section 307.6 (1) and 11.1 of the Criminal Code 1995 (Cth) sequence 19, the offence of attempting to possess a marketable quantity of a border-controlled drug, namely methamphetamine, the indicative sentence is one of 4 years.

6. In respect of the offence at 400.6(1) of the Criminal Code 1995 (Cth), sequence 20, dealing with money or property that was in that the accused believed to be the proceeds of crime and the sum of $10,000 or more, the indicative sentence is one of 1 year and 6 months.

7. The total term of imprisonment is one of 8 years commencing on 26 September 2023 and expiring on 25 September 2031. I fix a non-parole period of 5 years expiring on 25 September 2028 representing 62.5% of the head sentence.

8. The offender will be eligible for release on parole at the expiration of the non-parole period, subject to s 19AL of the Crimes Act 1914 (Cth).

9. I have also made the orders which were agreed by Consent regarding s 316 of the Proceeds of Crime Act and the forfeiture of property to the Crown.

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 Ersegovic [2024] NSWDC 596
Hearing dates:	7 November 2024 8 November 2024
Date of orders:	8 November 2024
Decision date:	08 November 2024
Jurisdiction:	Criminal
Before:	Anderson SC DCJ
Decision:	1. The offender is convicted. 2. With respect to Sequence 10, noting sequence 11 on the Form 1, I order that the matter be dealt with pursuant to section 10A of the Crimes Sentencing Procedure Act. 3. In respect of the offence at 307.8(1) of the Criminal Code 1995 (Cth) sequence 13, the offence of possessing a substance that is reasonably suspected of having been unlawfully imported, the indicative sentence is one of 6 years. 4. In respect of the offence 372.1(1) of the Criminal Code 1995 (Cth) sequence 15, taking into account the matter on the section 16BA schedule, will the offence of dealing with identification information for the purpose of committing an offence or facilitating the commission of an offence against the law of the Commonwealth, the indicative sentence is one of 1 year and 6 months. 5. In respect of the offence at section 307.6 (1) and 11.1 of the Criminal Code 1995 (Cth) sequence 19, the offence of attempting to possess a marketable quantity of a border-controlled drug, namely methamphetamine, the indicative sentence is one of 4 years. 6. In respect of the offence at 400.6(1) of the Criminal Code 1995 (Cth), sequence 20, dealing with money or property that was in that the accused believed to be the proceeds of crime and the sum of $10,000 or more, the indicative sentence is one of 1 year and 6 months. 7. The total term of imprisonment is one of 8 years commencing on 26 September 2023 and expiring on 25 September 2031. I fix a non-parole period of 5 years expiring on 25 September 2028 representing 62.5% of the head sentence. 8. The offender will be eligible for release on parole at the expiration of the non-parole period, subject to s 19AL of the Crimes Act 1914 (Cth). 9. I have also made the orders which were agreed by Consent regarding s 316 of the Proceeds of Crime Act and the forfeiture of property to the Crown.
Catchwords:	CRIME – Sentencing - offences connected with drug importation – proceeds of crime – non exculpatory duress.
Legislation Cited:	Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Code Act 1995 (Cth) Criminal Procedure Act 1986 (NSW) Drug Misuse and Trafficking Act 1986 (NSW)
Cases Cited:	R v McGregor [2024] NSWCCA 200
Category:	Sentence
Parties:	Rex (Crown) Stephen Ersegovic (Offender)
Representation:	Counsel: Mr T Hammond (Offender) Ms M Tam (Crown) Solicitors: K Adlington (Offender) Commonwealth Director of Public Prosecutions (Crown)
File Number(s):	2023/00306314