R v Karacic - [2001] NSWCCA 12

Reported Decision:
121 A Crim R 7

New South Wales

Court of Criminal Appeal

CITATION: Regina v Karacic [2001] NSWCCA 12

FILE NUMBER(S): CCA 60320/00

HEARING DATE(S): 02/02/01

JUDGMENT DATE:
2 February 2001

PARTIES :

Regina v Zelko Mile Karacic

JUDGMENT OF: Spigelman CJ at 40; Grove J at 54; Whealy J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : ------

LOWER COURT JUDICIAL
OFFICER : Kinchington DCJ

COUNSEL : Robert Sutherland - Commonwealth Crown
P. M. Paish - Appellant

SOLICITORS: Commonwealth DPP - Crown
----- - Appellant

LEGISLATION CITED: Customs Act 1901
Crimes Act 1914 (Commonwealth)

CASES CITED:
R v Thomson; R v Houlton (2000) 49 NSWLR 383
R v Wong; R v Leung [1999] 48 NSWLR 340 at 366
R v Ngui and Tiong [2000] 111 A Crim R 593
R v Jurisic (1998) 48 NSWLR 209
R v Henry (1999) 46 NSWLR 346
R v Olbrich (1999) 166 ALR 330 at 335

DECISION: 1. Leave to appeal be granted.; 2. The appeal be allowed.; 3. The applicant be resentenced; that he be sentenced to a term of imprisonment of 8 years dating from 31 March 2000 and a non parole period of 5 years to be set. The prisoner will be eligible for realse on parole on 30 March 2005.

IN THE COURT

OF CRIMINAL APPEAL

60302/00

SPIGELMAN CJ
GROVE J
WHEALY J

FRIDAY 2 February 2001

REGINA v Zelko Mile KARACIC

JUDGMENT

1 SPIGELMAN CJ: I invite Justice Whealy to deliver the first judgment.

2 WHEALY J: Thank you Chief Justice.

3 The applicant pleaded guilty to one count in an indictment presented before the District Court on 27 March 2000. This alleged that on 1 April 1988 the applicant attempted to obtain possession of a quantity of heroin contrary to the provisions of s 233B(1)(c) of the Customs Act 1901. The quantity of heroin involved a total net pure weight of 453.8 net grams. This was in excess of the trafficable quantity applicable to heroin as specified in the Act. The maximum penalty applicable to the offence was 25 years imprisonment or a fine of $100,000 or both.

4 The applicant had originally pleaded guilty in the District Court on 29 August 1999. At proposed sentence proceedings in December 1999, an intention to reverse the plea to "not guilty" was indicated and the matter was set down for trial before Kinchington DCJ on 27 March 2000. On that date, the proposed application for reversal of plea was not pursued and the original plea of guilty was adhered to. The sentencing judge heard evidence on 27 and 31 March 2000. He then remanded the applicant, who had previously been on bail, in custody until 11 May 2000. On that day he published a document marked "Reasons for Sentence" and gave an oral judgment which incorporated, by reference, the published reasons for judgment.

5 The applicant was sentenced to ten years imprisonment. A non parole period of seven years was specified. In…

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 Karacic

Details

AGLC: R v Karacic [2001] NSWCCA 12
Case: [2001] NSWCCA 12
Decision Date: 2 February 2001

CaseChat Overview and Summary

The case of Regina v Karacic was heard by the New South Wales Court of Criminal Appeal. The appellant, Zelko Mile Karacic, was appealing against a sentence imposed by the District Court for an offence under section 233B(1)(c) of the Customs Act 1901. Karacic had pleaded guilty to attempting to obtain possession of a quantity of heroin exceeding the trafficable quantity. The legal issues before the Court included whether the sentence was manifestly excessive and whether the sentencing judge had erred in his consideration of the appellant's criminal history. The Court found that the sentencing judge had been provided with incorrect information about the appellant's prior imprisonment, which miscarried the sentencing process. The Court allowed the appeal, granted leave to appeal, and resentenced the appellant to a term of imprisonment of eight years with a non-parole period of five years. The Court emphasized the importance of considering guidelines and the specific circumstances of each case when determining an appropriate sentence.

Orders