R v Mirceski - [2020] NSWDC 220

District Court

New South Wales

Medium Neutral Citation: R v Mirceski [2020] NSWDC 220
Hearing dates: 19 March 2020
Date of orders: 19 March 2020
Decision date: 19 March 2020
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
A term of imprisonment of 1 year and 10 months to be served by way of an intensive corrections order pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999: at [32].

Catchwords: CRIME — Money laundering — Dealing with money suspected of being proceeds of crime
SENTENCING — Penalties — Intensive correction order
SENTENCING — Relevant factors on sentence — Deterrence — General principles — Moral culpability Sentencing statistics
SENTENCING — Subjective considerations on sentence — Rehabilitation — Remorse — Unlikely to reoffend — Plea of guilty
Legislation Cited: Crimes Act 1914 (Cth)
Criminal Code 1995 (Cth)
Cases Cited: Du Randt [2008] NSWCCA 121
Ihemeje v R [2012] NSWCCA 269
R v Ansari (2007) 70 NSWLR 89
R v Guo; R v Qian (2010) 201 A Crim R 403; [2010] NSWCCA 170
Van Eeden v R [2012] NSWCCA 18
Xiao v R (2018) 96 NSWLR 1
Texts Cited: Nil
Category: Sentence
Parties:
Regina (Crown - CDPP)
James Mirceski (Offender)
Representation:
Ms S Flood (Crown)
Mr A Williams (Counsel for the Offender)

File Number(s): 2019/169145

Judgment

James Mirceski, aged 26, appears for sentence having pleaded guilty to one count under s 400.42 of the Criminal Code 1995 (Cth), the particulars being that on about 10 December 2017 he attempted to deal with money where there was a risk that the money would become an instrument of crime, being reckless as to the fact that there was a risk it would become an instrument of crime in relation to a Commonwealth indictable offence, and at the time the value of the money and property was more than $100,000. The maximum penalty for this offence is ten years imprisonment or a fine.
The offender has spent no time in custody and he has no criminal record.
The detailed facts set out an attempted importation by a criminal syndicate of an extremely large quantity of cocaine as the background to this matter. However it is important to note that there is no suggestion that the offender had any knowledge of the drug importing activities of that syndicate, but it does set the background against which his offending occurred. In short, two shipping containers arrived in Australia in March 2017. The Australian Federal Police had been investigating an international criminal syndicate responsible for the importation of a large amount of cocaine into Australia, and they seized 1.28 tonnes of cocaine, said to have a street value of between $700,000 and $1.5 billion.
It was asserted by undercover operatives eventually that the container had been lost, but then the police commenced attempts to obtain evidence of the involvement of the syndicate members responsible for the importation. There were meetings arranged by secure telecommunications devices known as a Cipher. Those meetings occurred in various parts of…

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 Mirceski

Details

AGLC: R v Mirceski [2020] NSWDC 220
Case: [2020] NSWDC 220
Decision Date: 19 March 2020

CaseChat Overview and Summary

The case of R v Mirceski was brought before the Supreme Court of New South Wales. The defendant, Mr. Mirceski, was charged with dealing with money suspected to be proceeds of crime under the Crimes Act 1900. The dispute centred on the appropriate sentence to be imposed upon Mr. Mirceski, who had pleaded guilty to the offence. The court was tasked with determining the most suitable penalty for Mr. Mirceski, considering various sentencing principles and factors.

The primary legal issues for the court were to decide on the appropriate penalty for the offence of dealing with money suspected to be proceeds of crime and to assess the relevant factors for sentencing, including deterrence, moral culpability, rehabilitation, remorse, and the likelihood of reoffending. The court had to balance these factors, considering the defendant’s plea of guilty, which could potentially mitigate the severity of the sentence. The court also had to consider the statutory framework provided by the Crimes (Sentencing Procedure) Act 1999, particularly in relation to the imposition of an intensive corrections order.

In delivering its judgment, the court emphasised the importance of deterrence and the moral culpability of Mr. Mirceski, while also acknowledging his plea of guilty, which was considered a mitigating factor. The court examined sentencing statistics and the likelihood of Mr. Mirceski reoffending, concluding that an intensive corrections order was appropriate. This form of sentencing was deemed suitable given Mr. Mirceski’s likelihood of rehabilitation and his expressed remorse. Ultimately, the court sentenced Mr. Mirceski to a term of imprisonment of one year and ten months, to be served by way of an intensive corrections order.

The final orders of the court mandated that Mr. Mirceski was to serve a term of imprisonment of one year and ten months through an intensive corrections order, as outlined in section 7(1) of the Crimes (Sentencing Procedure) Act 1999. This decision was made with careful consideration of the principles of deterrence, the defendant's moral culpability, and the mitigating factor of his plea of guilty.

Orders

Orders of the court

A term of imprisonment of 1 year and 10 months to be served by way of an intensive corrections order pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999: at [32].

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 Mirceski [2020] NSWDC 220
Hearing dates:	19 March 2020
Date of orders:	19 March 2020
Decision date:	19 March 2020
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	A term of imprisonment of 1 year and 10 months to be served by way of an intensive corrections order pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999: at [32].
Catchwords:	CRIME — Money laundering — Dealing with money suspected of being proceeds of crime SENTENCING — Penalties — Intensive correction order SENTENCING — Relevant factors on sentence — Deterrence — General principles — Moral culpability Sentencing statistics SENTENCING — Subjective considerations on sentence — Rehabilitation — Remorse — Unlikely to reoffend — Plea of guilty
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Code 1995 (Cth)
Cases Cited:	Du Randt [2008] NSWCCA 121 Ihemeje v R [2012] NSWCCA 269 R v Ansari (2007) 70 NSWLR 89 R v Guo; R v Qian (2010) 201 A Crim R 403; [2010] NSWCCA 170 Van Eeden v R [2012] NSWCCA 18 Xiao v R (2018) 96 NSWLR 1
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown - CDPP) James Mirceski (Offender)
Representation:	Ms S Flood (Crown) Mr A Williams (Counsel for the Offender)
File Number(s):	2019/169145