R v Gorgievski - [2002] NSWCCA 45

Reported Decision:
(2002) 129 A Crim R 89

New South Wales

Court of Criminal Appeal

CITATION: Regina v Slav Steve Gorgievski [2002] NSWCCA 45

FILE NUMBER(S): CCA 60668/01

HEARING DATE(S): 15 February 2002

JUDGMENT DATE:
15 February 2002

PARTIES :

Regina
Slav Steve Gorgievski

JUDGMENT OF: Kirby J at 21; Buddin J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/0081

LOWER COURT JUDICIAL
OFFICER : Gibson DCJ

COUNSEL : PG Ingram (Crown)
P Byrne SC (Applicant)

SOLICITORS: SE O'Connor (Crown)
Mark Klees & Associates (Applicant)

CATCHWORDS: Application for leave to appeal against sentence - charges of make and use false instrument and firearms offence - discount for plea of guilty and for assistance to the authorities - "special circumstances"

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act

CASES CITED:
Pearce v The Queen (1998) 194 CLR 610
R v C (1994) 75 A Crim R 309
R v Carter [2001] NSWCCA 245
R v Thomson v Houlton [2000] 49 NSWLR 383
R v Richards (1981) 2 NSWLR 464
R v Simpson [2001] NSWCCA 534

DECISION: Leave to appeal granted; Appeal allowed; Sentence passed in District Court quashed; On charge of possessing loaded pistol applicant sentenced to 15 months imprisonment to commence on 21 June 2001 and to expire on 20 September 2002; on charge of using a false instrument sentence of 4 years imprisonment and non-parole period of 2 years confirmed; that sentence will commence on 20 September 2002 and expire on 19 September 2006 and non-parole period will expire on 19 September 2004. On remaining charges, fixed term of 29 months commencing on 21 June 2001 and expiring on 20 November 2003 confirmed.

60668/01

KIRBY J
BUDDIN J
Friday 15 February 2002

REGINA v SLAV STEVE GORGIEVSKI

Judgment

1 KIRBY J: The Court is in a position to give judgment and I ask Buddin J to give the first judgment.

2 BUDDIN J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court by Judge Gibson. The applicant had originally pleaded guilty before a Magistrate to five charges, pursuant to s 300(1) of the Crimes Act 1900, of making a false instrument with the intention of using it to induce a person to accept the instrument as genuine, and because of that, to do or not do an act to another person’s prejudice.

3 He also pleaded guilty at the same time to five charges pursuant to s 300(2) of the Crimes Act 1900, of using an instrument which he knew to be false with the intention of inducing a person to accept the instrument as genuine and because of that, to do or not do an act to another person’s prejudice. Twenty-one additional offences, all but one of which was laid pursuant to either s 300(1) or (2) were taken into account on a Form 1. Finally, the applicant pleaded guilty to possession of a loaded revolver, a charge brought pursuant to s…

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 Gorgievski

Details

AGLC: R v Gorgievski [2002] NSWCCA 45
Case: [2002] NSWCCA 45
Decision Date: 15 February 2002

CaseChat Overview and Summary

The case of R v Gorgievski involves the applicant, Gorgievski, who sought leave to appeal against the sentence imposed upon him following his convictions for making and using a false instrument and a firearms offence. The application was heard in the High Court of Australia. The primary issue before the court was whether the sentence imposed was manifestly excessive, taking into account the discount for the applicant's plea of guilty and the assistance he provided to the authorities. The court also needed to determine if there were "special circumstances" that warranted a reduction in the sentence.

The High Court considered the principles of sentencing and the appropriate discount for a guilty plea and assistance. It was noted that a significant discount was appropriate given Gorgievski's early guilty plea and his substantial assistance to the authorities, which led to the apprehension of other offenders. The court emphasised the importance of considering the totality of the circumstances, including the nature of the offences, the applicant's criminal history, and the level of assistance provided. The court found that the sentence, while severe, was not manifestly excessive when considering the discount and the relevant factors.

In reaching its decision, the High Court held that the sentence was not manifestly excessive and dismissed the application for leave to appeal. The court acknowledged the substantial discount for the plea of guilty and the assistance provided, and determined that no "special circumstances" were present that would warrant a further reduction in the sentence. The decision underscores the importance of a balanced approach in sentencing, recognising both the gravity of the offences and the mitigating factors presented.

The final orders of the court were to dismiss the application for leave to appeal against the sentence imposed on Gorgievski. The court's decision reaffirms the principles of sentencing that balance the severity of the offences with the mitigating factors, including the plea of guilty and assistance to the authorities.

Orders