R v Mikulic, Ante - [2010] NSWDC 33

CITATION: R v Mikulic, Ante [2010] NSWDC 33

JUDGMENT DATE:
26 February 2010

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: Possess unauthorised firearm:
Convicted.
Sentence to a minimum term of 8 months to date from the 23rd February 2009 and expiring on the 22nd October 2009. Balance of term of 6 months and 15 days to expire on the 7th May 2010.
Supply prohibited drug:
Convicted.
Sentence to a minimum term of 2 years and 6 months to date from the 23rd October 2009 and expiring on the 22nd April 2012. Balance of term of 2 years, 3 months and 15 days to expire on the 6th August 2014.
Pursuant to s.32 of the Crimes (Sentencing Procedure) Act 1999, I take into account the following offences on the Form 1:
1.Possess ammunition without holding licence/permit/authority (H37077977/2)
2.Goods in custody (H37077977/4)
3.Possess prescribe restricted substance (H37077977/5)
4.Possess prescribe restricted substance (H37077977/6)
5.Possess prescribe restricted substance (H37077977/7)
6.Possess prescribe restricted substance (H37077977/8)
7.Possess prescribe restricted substance (H37077977/9)
8.Not keep firearm safely (H37077977/10)
9.Deal with property suspected of being stolen of crime (H36613846/1)
10.Possess prohibited drug (H38166107/1)
HH found special circumstances.
HH ordered the destruction of the drugs.
HH ordered the destruction of the firearm and ammunition.
HH referred the offender to the compulsory Drug Court for inclusion into the Compulsory Drug Treatment Centre.

CATCHWORDS: Criminal Law - Sentence - Possess Firearm - unlicensed - Berretta Pistol. - Criminal Law - Sentence - Possses Prohibited Drug - heroin - 95gms - agreed facts - suspect motor vehicle searched $8500 and mobile phones found - taken to police station - heroin found - premises searched - further herion, other drugs, firearm, ammunition and police badge found - further heroin found whilst in remand custody.

LEGISLATION CITED: Firearms Act 1996

CASES CITED: R v Gladue [1999] 1SCR 688 [80]
R v Cuthbert (1967) 2 NSWLR 329
R v Rushby [1977] NSWLR 597
R v Hayes [1984] 1 NSWLR 740
R v Pearce (1998) 194 CLR 610

PARTIES: Regina
Ante Mikulic

FILE NUMBER(S): 2009/00161076

COUNSEL: Defence: M Dennis

SOLICITORS: Crown: L Burgoyne

JUDGMENT
1. Ante Mikulic acknowledged his guilt before the Local Court on 15 October 2009 for supplying ninety-five grams of heroin and being in possession of a black Barretta pistol when he was not authorised by license so to do. Today he is to be held accountable for his criminal conduct as expressed in these charges, he also asks that a further ten offences be taken into account on a Form 1 when I am sentencing him for supplying the prohibited drug.

2. Two of the offences I am asked to take into account, not keep a firearm safely and possess ammunition without a licence should really have been put on a Form 1 relevant to the firearm offence rather than relevant to the drug offence, but I suppose at the end of the day it will make no difference on this occasion because I will be taking them into account. But they…

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 Mikulic, Ante

Details

AGLC: R v Mikulic, Ante [2010] NSWDC 33
Case: [2010] NSWDC 33
Decision Date: 26 February 2010

CaseChat Overview and Summary

In the District Court of New South Wales, the case of R v Mikulic, Ante, involved the defendant being charged with multiple criminal offences. Ante Mikulic was found to be in possession of an unlicensed firearm, a Berretta Pistol, and a substantial amount of heroin. The case arose from a search of a motor vehicle where $8500 and mobile phones were found, leading to Mikulic's arrest. Further searches of his premises and personal effects while in custody uncovered additional heroin, other drugs, a police badge, a firearm, and ammunition. The court was tasked with determining Mikulic's guilt on the charges and subsequently imposing an appropriate sentence.

The legal issues before the court encompassed the interpretation and application of various criminal statutes, particularly concerning the possession of unlicensed firearms, the supply of prohibited drugs, and the possession of restricted substances. The court had to assess the severity of Mikulic's criminal activities, considering the quantity and type of drugs involved, as well as the presence of a firearm and ammunition. Additionally, the court needed to address the specific charges listed in the Form 1 and decide on the appropriate penalties, including the consideration of special circumstances and the destruction of illicit items.

In delivering the judgment, the court found Mikulic guilty on all charges. The sentencing approach was methodical, with the court assigning specific minimum terms for the primary offences of possessing an unauthorised firearm and supplying a prohibited drug. The court also took into account the additional offences listed on the Form 1, imposing a comprehensive sentence that reflected the totality of Mikulic's criminal conduct. The court ordered the destruction of the drugs, firearm, and ammunition, and mandated Mikulic's referral to the compulsory Drug Court for inclusion in the Compulsory Drug Treatment Centre.

The final orders included specific terms for Mikulic's imprisonment, with a minimum term of 8 months for possessing an unauthorised firearm and a minimum term of 2 years and 6 months for supplying a prohibited drug. The remaining offences were considered under section 32 of the Crimes (Sentencing Procedure) Act 1999, resulting in the destruction of the illicit items and Mikulic's referral to the Compulsory Drug Treatment Centre. The detailed sentencing reflects the court's consideration of the gravity and nature of Mikulic's criminal activities.

Orders

Orders of the court

Possess unauthorised firearm:

Convicted.

Sentence to a minimum term of 8 months to date from the 23rd February 2009 and expiring on the 22nd October 2009. Balance of term of 6 months and 15 days to expire on the 7th May 2010.

Supply prohibited drug:

Convicted.

Sentence to a minimum term of 2 years and 6 months to date from the 23rd October 2009 and expiring on the 22nd April 2012. Balance of term of 2 years, 3 months and 15 days to expire on the 6th August 2014.

Pursuant to s.32 of the Crimes (Sentencing Procedure) Act 1999, I take into account the following offences on the Form 1:

1.Possess ammunition without holding licence/permit/authority (H37077977/2)

2.Goods in custody (H37077977/4)

3.Possess prescribe restricted substance (H37077977/5)

4.Possess prescribe restricted substance (H37077977/6)

5.Possess prescribe restricted substance (H37077977/7)

6.Possess prescribe restricted substance (H37077977/8)

7.Possess prescribe restricted substance (H37077977/9)

8.Not keep firearm safely (H37077977/10)

9.Deal with property suspected of being stolen of crime (H36613846/1)

10.Possess prohibited drug (H38166107/1)

HH found special circumstances.

HH ordered the destruction of the drugs.

HH ordered the destruction of the firearm and ammunition.

HH referred the offender to the compulsory Drug Court for inclusion into the Compulsory Drug Treatment Centre.

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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CITATION:	R v Mikulic, Ante [2010] NSWDC 33
JUDGMENT DATE:	26 February 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Possess unauthorised firearm: Convicted. Sentence to a minimum term of 8 months to date from the 23rd February 2009 and expiring on the 22nd October 2009. Balance of term of 6 months and 15 days to expire on the 7th May 2010. Supply prohibited drug: Convicted. Sentence to a minimum term of 2 years and 6 months to date from the 23rd October 2009 and expiring on the 22nd April 2012. Balance of term of 2 years, 3 months and 15 days to expire on the 6th August 2014. Pursuant to s.32 of the Crimes (Sentencing Procedure) Act 1999, I take into account the following offences on the Form 1: 1.Possess ammunition without holding licence/permit/authority (H37077977/2) 2.Goods in custody (H37077977/4) 3.Possess prescribe restricted substance (H37077977/5) 4.Possess prescribe restricted substance (H37077977/6) 5.Possess prescribe restricted substance (H37077977/7) 6.Possess prescribe restricted substance (H37077977/8) 7.Possess prescribe restricted substance (H37077977/9) 8.Not keep firearm safely (H37077977/10) 9.Deal with property suspected of being stolen of crime (H36613846/1) 10.Possess prohibited drug (H38166107/1) HH found special circumstances. HH ordered the destruction of the drugs. HH ordered the destruction of the firearm and ammunition. HH referred the offender to the compulsory Drug Court for inclusion into the Compulsory Drug Treatment Centre.
CATCHWORDS:	Criminal Law - Sentence - Possess Firearm - unlicensed - Berretta Pistol. - Criminal Law - Sentence - Possses Prohibited Drug - heroin - 95gms - agreed facts - suspect motor vehicle searched $8500 and mobile phones found - taken to police station - heroin found - premises searched - further herion, other drugs, firearm, ammunition and police badge found - further heroin found whilst in remand custody.
LEGISLATION CITED:	Firearms Act 1996
CASES CITED:	R v Gladue [1999] 1SCR 688 [80] R v Cuthbert (1967) 2 NSWLR 329 R v Rushby [1977] NSWLR 597 R v Hayes [1984] 1 NSWLR 740 R v Pearce (1998) 194 CLR 610
PARTIES:	Regina Ante Mikulic
FILE NUMBER(S):	2009/00161076
COUNSEL:	Defence: M Dennis
SOLICITORS:	Crown: L Burgoyne