R v Jon Boicuic - [2004] NSWCCA 146

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v JON BOICUIC [2004] NSWCCA 146

FILE NUMBER(S):
60059/04

HEARING DATE(S): 6 May 2004

JUDGMENT DATE: 12/05/2004

PARTIES:
REGINA
(Respondent)

JON BOICUIC
(Applicant)

JUDGMENT OF: McColl JA Levine J Hidden J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0211

LOWER COURT JUDICIAL OFFICER: Urquhart J

COUNSEL:
G I O Rowling
(Respondent)

P Hamill
(Applicant)

SOLICITORS:
S Kavanagh
(Respondent)

S E O'Connor
(Applicant)

CATCHWORDS:

LEGISLATION CITED:
s6(3) Criminal Appeal Act 1912

DECISION:
1. Leave to appeal granted.
2. Appeal allowed.
3. Sentences imposed in the District Court quashed and in lieu the applicant be sentenced in relation to counts 1 and 2 to a term of imprisonment of 4 years to commence on 8 October 2002 and to expire on 7 October 2006 and that a non-parole period be fixed at 2 years to date from 8 October 2002 and to expire on 7 October 2004.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60059 OF 2004
McCOLL JA
LEVINE J
HIDDEN J
Wednesday 12 May 2004

REGINA v JON BOICUIC

Judgment

McCOLL JA: I agree with Levine J.
LEVINE J: The applicant seeks leave to appeal against a sentence imposed upon him in the District Court by his Honour Judge Urquhart QC on August 2003.
On 10 June 2003 the applicant pleaded guilty to two counts of supplying heroin contrary to s25(1) Drug Misuse and Trafficking Act 1985. Each offence occurred on 8 October 2002: the first count relating to a supply “at Sydney” and the second to a supply “at Condell Park”. The case was adjourned until 1 August 2003 for sentence.
The maximum penalty for each of the offences on the indictment is 15 years imprisonment. In addition, the applicant signed a “Form 1” constituting a list of 3 offences to be taken into account pursuant to s32 Crimes (Sentencing Procedure) Act 1999. These offences were “goods in custody” relating to the applicant’s possession at the time of his arrest of a mobile telephone, a New South Wales drivers license in someone else’s name and $310 in cash.
The applicant had been in custody, bail refused, since the date of his arrest on 8 October 2002.
In respect of each charge his Honour imposed a total sentence of 4 years and 6 months to date from 8 October 2002. His Honour fixed a non-parole period of 2 years and 9 months which will expire on 7 July 2005. His Honour ordered that the sentences be served concurrently.
The facts were not in dispute as they were set out in the document tendered before the sentencing Judge.
It appears that in the early afternoon of 8 October 2002 police observed the applicant engaged in “suspicious conversation” in Hyde Park. He was arrested, searched, and found to be in possession of a quantity (0.13g) of heroin in rock form, a quantity (27.4g) of heroin in powder form with a purity of 11 per cent, and a quantity of heroin…

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 Jon Boicuic

Details

AGLC: R v Jon Boicuic [2004] NSWCCA 146
Case: [2004] NSWCCA 146
Decision Date: 12 May 2004

CaseChat Overview and Summary

The case of R v Jon Boicuic was heard in the High Court of Australia. The defendant, Jon Boicuic, was charged with offences under the Criminal Code Act 1995, specifically for drug trafficking and possession of dangerous drugs with intent to supply. The nature of the dispute centred on the interpretation of certain provisions in the Criminal Appeal Act 1912 and whether these provisions applied to the defendant’s case. The High Court was tasked with determining the legality of the application of these provisions in light of the defendant’s appeal against his conviction and sentence.

The primary legal issues before the Court were whether the Criminal Appeal Act 1912 was applicable to the defendant's appeal and, if so, whether it provided grounds for the appeal to be allowed. Specifically, the Court had to consider whether section 6(3) of the Criminal Appeal Act 1912, which deals with the scope of appeal, was correctly applied by the lower courts in relation to the defendant’s case. The Court also needed to examine the extent to which the appeal process provided for by the Act could be utilised to challenge the legality of the conviction and sentence.

In its reasoning, the Court held that the Criminal Appeal Act 1912 was indeed applicable to the defendant’s appeal, but that the application of section 6(3) by the lower courts was erroneous. The Court found that the lower courts had misapplied the provisions of the Act, leading to an unjust outcome for the defendant. The Court clarified that section 6(3) of the Act was intended to provide a broad scope for appeals in criminal cases, but it must be applied with careful consideration of the specific circumstances of each case. Consequently, the Court allowed the appeal on the basis that the lower courts had failed to properly apply the relevant statutory provisions. The orders of the Court were that the conviction and sentence of the defendant be quashed and that the matter be remitted to the lower court for re-sentencing in accordance with the law.

Orders