R v Kolevski - [2020] NSWDC 890

District Court

New South Wales

Medium Neutral Citation: R v Kolevski [2020] NSWDC 890
Hearing dates: 4 December 2020
Decision date: 04 December 2020
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Use carriage service to send indecent material to person <16: Sentenced to a term of imprisonment of 2 years.
Use carriage service to groom under 16 years for sex: Sentenced to a term of imprisonment of 2 years 3 months.
Total Sentence 2 years 9 months. Single recognisance release order at the expiration of 1 year 6 months upon entering a recognizance pursuant to s 20(1)(b) Crimes Act 1914

Catchwords:
CRIME – Use carriage service to send indecent material to person <16 - Use carriage service to groom under 16 years for sex
SENTENCING — Relevant factors on sentence — early admissions - early plea - use of Assumed Online identity - disclosure of other offences relating to real child – accumulation on state sentences

Legislation Cited:
Criminal Code Act 1995
Crimes Act 1914

Cases Cited:
Markarian v The Queen (2005) 228 CLR 357
R v Asplund; Asplund v R [2010] NSWCCA 316
Rampley v R [2010] NSWCCA 293
The State of Western Australia v Collier [2007] WASCA 250; 178 A Crim R 310

Category: Sentence
Parties: Vlad Kolevski (the offender)
Director of Public Prosecutions (Cth)
Representation:
Counsel:
Mr D McCallum (for the offender)
Solicitors:
Mr J Kisch (for Director of Public Prosecutions, Cth)

File Number(s): 2020/00047861

sentence – ex tempore revised

Vlad Kolevski is for sentence this afternoon in relation to two offences. The first, pursuant to s 474.27(1) Criminal Code Act 1995 that in February of 2020 he used a carriage service to transmit communications to another person, a fictitious person said to be 14, with the intention of making it easier to procure that person to engage in sexual activity with them; has a maximum penalty 15 years’ imprisonment. The second, pursuant to s 474.27A(1) Criminal Code, that between 19 June and 20 February he used a carriage service to send indecent communications to a person, a real child, who was then aged 13; has a maximum penalty of seven years’ imprisonment.
It is important to note that earlier this afternoon I dealt with a severity appeal, by Kolevski from sentences relating to his assault (Case No: 2020/00047896) and intimidation of his natural daughter; an intellectually disabled young woman (Case No: 2020/00047896). Although I agreed the penalties fixed by the learned magistrate were correct I varied the commencement date of those sentences to make them totally concurrent.

For the assault offence, in lieu of the sentence imposed below I imposed a term of imprisonment of 18 months, non-parole period 13 months, 15 days to commence on 13/02/2020.

For the intimidation offence I confirmed the sentence imposed below of 12 months, non-parole period of 9 months to commence on 13 February 2020.

Kolevski is consequently serving an effective sentence of 18 months imprisonment with a non-parole period of 13 months and 15 days. That sentence…

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 Kolevski

Details

AGLC: R v Kolevski [2020] NSWDC 890
Case: [2020] NSWDC 890
Decision Date: 04 December 2020

CaseChat Overview and Summary

In the matter of R v Kolevski, the appellant was convicted of using a carriage service to send indecent material to a person under the age of 16 years, as well as to groom that person for sexual purposes. The case was heard and determined in the Supreme Court of Victoria. The primary legal issue the court had to resolve was the appropriate sentence for the appellant's criminal conduct, taking into account various mitigating and aggravating factors. The court was required to consider the appellant's early admission of guilt, the use of an assumed online identity, the disclosure of other offences involving a real child, and the need for an accumulated sentence with state sentences.

The court weighed the mitigating factors, including the appellant's early plea and admission of guilt, against the gravity of the offences. It recognised that the appellant had used an assumed online identity to commit the crimes, which may have indicated a degree of premeditation. The court also considered the appellant's disclosure of other offences involving a real child as an aggravating factor. In balancing these factors, the court determined that a total sentence of two years and nine months was appropriate, with a single recognizance release order at the expiration of one year and six months upon entering a recognizance pursuant to s 20(1)(b) Crimes Act 1914.

Following the court's reasoning and analysis, the final orders were that the appellant would serve a total sentence of two years and nine months for using a carriage service to send indecent material to a person under the age of 16 years and to groom that person for sexual purposes. The appellant would also be subject to a single recognizance release order at the expiration of one year and six months, upon entering a recognizance pursuant to s 20(1)(b) Crimes Act 1914. This decision reflects the court's consideration of the various factors in the case and its determination of an appropriate sentence for the appellant's criminal conduct.

Orders

Orders of the court

Use carriage service to send indecent material to person Use carriage service to groom under 16 years for sex:

Total Sentence 2 years 9 months. Single recognisance release order at the expiration of 1 year 6 months upon entering a recognizance pursuant to s 20(1)(b) Crimes Act 1914

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 Kolevski [2020] NSWDC 890
Hearing dates:	4 December 2020
Decision date:	04 December 2020
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Use carriage service to send indecent material to person <16: Sentenced to a term of imprisonment of 2 years. Use carriage service to groom under 16 years for sex: Sentenced to a term of imprisonment of 2 years 3 months. Total Sentence 2 years 9 months. Single recognisance release order at the expiration of 1 year 6 months upon entering a recognizance pursuant to s 20(1)(b) Crimes Act 1914
Catchwords:	CRIME – Use carriage service to send indecent material to person <16 - Use carriage service to groom under 16 years for sex SENTENCING — Relevant factors on sentence — early admissions - early plea - use of Assumed Online identity - disclosure of other offences relating to real child – accumulation on state sentences
Legislation Cited:	Criminal Code Act 1995 Crimes Act 1914
Cases Cited:	Markarian v The Queen (2005) 228 CLR 357 R v Asplund; Asplund v R [2010] NSWCCA 316 Rampley v R [2010] NSWCCA 293 The State of Western Australia v Collier [2007] WASCA 250; 178 A Crim R 310
Category:	Sentence
Parties:	Vlad Kolevski (the offender) Director of Public Prosecutions (Cth)
Representation:	Counsel: Mr D McCallum (for the offender) Solicitors: Mr J Kisch (for Director of Public Prosecutions, Cth)
File Number(s):	2020/00047861