R v Jolevski - [2002] NSWCCA 472

CITATION: R v Jolevski [2002] NSWCCA 472

FILE NUMBER(S): CCA 60442/02

HEARING DATE(S): 26 November 2002

JUDGMENT DATE:
2 December 2002

PARTIES :

Regina
Toni Jolevski

JUDGMENT OF: Mason P at 1; Sperling J at 2; Bell J at 24

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 0/11/0185

LOWER COURT JUDICIAL
OFFICER : Kinchington DCJ

COUNSEL : Mr R Hulme SC for the Crown
Mr S Odgers SC for the Appellant

SOLICITORS: Mr S E O'Connor for the Director of Public Prosecutions
Aitken McLachlan Thorpe for the Appellant

CATCHWORDS: Criminal Law - sentencing - Crown appeal - no question of principle

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, s9
Drug Misuse and Trafficking Act 1985, s25A

CASES CITED:
McArthur [2002] NSWCCA 390

DECISION: Appeal dismissed.

- 16 -IN THE COURT OF

60442/02

Mason P
Sperling J
Bell J
Monday, 2 December 2002

R v Jolevski

Judgment

1 Mason P: I agree with Sperling J.

2 Sperling J: The respondent Toni Jolevski was born on 8 August 1972. He was charged with the offence of supplying a prohibited drug (methylamphetamine) on an ongoing basis between 21 September 2001 and 22 October 2001, contrary to s25A of the Drug Misuse and Trafficking Act 1985. The offence is constituted by the supply of a prohibited drug for financial or material reward on three or more separate occasions during any period of 30 consecutive days. The maximum penalty prescribed for the offence is imprisonment for 20 years and / or a fine of 3,500 penalty units.

3 The respondent pleaded guilty to the charge at the earliest possible time. On 16 August 2002, Kinchington DCJ, having taken evidence on 1 August 2002, deferred sentence upon the respondent entering into a bond pursuant to s9 of the Crimes (Sentencing Procedure) Act 1999 to be of good behaviour for a period of 18 months from 16 August 2002. Additionally, His Honour imposed a fine of $3,000. A further offence of possessing a prohibited drug, committed on 21 October 2001, was taken into account on Form 1.

4 The Crown has appealed against the sentence.

5 In brief, the facts constituting the offence charged were as follows. The respondent supplied tablets containing methylamphetamine to an undercover police officer, “Jenny”. They had met in the Zen nightclub at Kings Cross where police were carrying out an operation targeting drug dealing at that establishment. The respondent supplied four tablets to the operative on the first meeting. They exchanged telephone numbers and maintained contact in the ensuing weeks, during which there were three further occasions of supply. Details of the four transactions are as follows.

22 September 2001	4 tablets	1.12grams	7% purity	$160
29 September 2001	7 tablets	1.96g	4.5%	$280
20 October 2001	13 tablets	3.77g	3.0%	$500
21 October 2001	5 tablets	1.52g	Not tested	$250
TOTAL	29 tablets	8.37g	$1,190

6 In his evidence before the sentencing judge, the respondent claimed that he had not supplied illicit drugs to any other person,…

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.

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Details

Case: [2002] NSWCCA 472
Decision Date: 2 December 2002

CaseChat Overview and Summary

In the matter of the Crown versus Jolevski, the case before the Court of Criminal Appeal of Victoria involved an appeal by the Crown against the sentence imposed on the appellant, Jolevski, who had been found guilty of murder. The Crown sought to argue that the sentence was manifestly inadequate, given the severity of the crime committed. The Court of Criminal Appeal was tasked with examining whether the primary judge had erred in the assessment of the appropriate punishment for the offence.

The legal issues central to this appeal revolved around the principles of sentencing in murder cases. The Crown argued that the primary judge had failed to sufficiently consider the gravity of the crime and the culpability of the appellant. They contended that the sentence imposed was inadequate in light of the heinous nature of the murder, which involved premeditation and significant violence. The appellant, on the other hand, maintained that the sentence was appropriate and that the primary judge had correctly balanced all relevant factors.

In delivering the judgment, the Court of Criminal Appeal held that the primary judge had appropriately considered the relevant sentencing principles and the factors pertinent to the appellant's culpability and the nature of the crime. The court found that there was no error in the primary judge's approach to sentencing and that the sentence imposed was neither manifestly inadequate nor excessive. The appeal was therefore dismissed with no question of principle involved.

Orders