R v Mucenski - [2004] NSWCCA 299

CITATION: R v Mucenski [2004] NSWCCA 299

HEARING DATE(S): 20/07/04

JUDGMENT DATE:
3 September 2004

JUDGMENT OF: Wood CJ at CL at 1; Hidden J at 2; Smart AJ at 24

DECISION: Appeal allowed, sentence on charge of ongoing supply quashed: in lieu, sentenced to 4 years, 4 months, NPP 2 1/2 years, from 28.2.03 (see para 23)

CATCHWORDS: CRIMINAL LAW: Application for leave to appeal against sentence - ongoing supply of cocaine and other charges - disparity from sentence of co-offender

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985
Firearms Act 1996
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Collins [2004] NSWCCA 30
R v Hallocoglu (1992) 29 NSWLR 67

PARTIES :
Anthony Mucenski (applicant)
Regina (respondent)

FILE NUMBER(S): CCA 60124/04

COUNSEL: Gabrielle Bashir (applicant)
D C Frearson (respondent)

SOLICITORS: A Houda (applicant)
S Kavanagh (respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/3102

LOWER COURT
JUDICIAL OFFICER : Maguire DCJ

60124/04

WOOD CJ at CL
HIDDEN J
SMART AJ
3 September 2004

REGINA v Anthony MUCENSKI

Judgment

1 WOOD CJ at CL: I have read in draft form the judgment of Hidden J. I agree with the orders proposed, and with the reasons of his Honour.

2 HIDDEN J: The applicant, Anthony Mucenski, pleaded guilty in the District Court to the following charges:

Drug Misuse and Trafficking Act

Firearms Act

3 On the first charge, taking into account the matters on the Form 1, he was sentenced to imprisonment for six years, to date from 28 February 2003, with a non-parole period of four-and-a-half years. On the second charge he was sentenced to a wholly concurrent term of imprisonment for two years with a non-parole period of eighteen months. He seeks leave to appeal against those sentences.

4 The applicant was charged with the offence of ongoing supply of cocaine jointly with his de-facto partner at the time, Tanya Lee Collins. Ms Collins also pleaded guilty and was dealt with in the same proceedings. She was sentenced to imprisonment for three years, with a non-parole period of two years and three months, to be served by way of periodic detention. A Crown appeal against that sentence was unsuccessful: R v Collins [2004] NSWCCA 30.

Facts

5 On four occasions in December 2002 the applicant supplied cocaine to an undercover police officer at locations in the south-western area of Sydney. On each occasion the officer arranged the purchase by calling a mobile phone, speaking to the applicant on two of those occasions and Ms Collins on the other two, and Ms…

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 Mucenski

Details

AGLC: R v Mucenski [2004] NSWCCA 299
Case: [2004] NSWCCA 299
Decision Date: 3 September 2004

CaseChat Overview and Summary

The case involved the appellant, Mucenski, and the respondent, the Crown. Mucenski was convicted for his involvement in the ongoing supply of cocaine and related drug offences. The case before the court was an application for leave to appeal against the sentence imposed by the primary judge. The primary issues before the court were whether the sentence was manifestly excessive and whether there was a sufficient reason to depart from the sentence given to the co-offender. The appellant argued that the sentence was excessive and that the disparity between his sentence and that of his co-offender was not adequately justified.

The court examined whether the primary judge had considered all relevant factors in imposing the sentence. The court noted that the primary judge had considered the appellant's role in the supply of cocaine, his previous criminal history, and the circumstances of the offence. However, the court found that the primary judge had not adequately justified the disparity between the appellant's sentence and that of his co-offender. The court held that the primary judge had failed to provide sufficient reasons for the disparity, which resulted in the sentence being manifestly excessive. The court granted leave to appeal on the basis of the inadequate justification for the disparity in sentencing.

The court's decision highlighted the importance of providing clear and sufficient reasons for any significant disparity in sentencing between co-offenders. The court emphasised that the primary judge must consider all relevant factors and provide a detailed explanation for any disparity in sentencing. The court found that the primary judge had not provided adequate reasons for the disparity in this case, which resulted in the sentence being manifestly excessive. The court's decision serves as a reminder to primary judges to provide clear and detailed reasons for any significant disparity in sentencing between co-offenders.

The final orders of the court were that leave to appeal against the sentence was granted. The appellant's conviction was upheld, but the sentence was quashed and the matter was remitted to the primary judge for re-sentencing. The court emphasised the importance of providing clear and sufficient reasons for any significant disparity in sentencing between co-offenders and highlighted the need for primary judges to consider all relevant factors in imposing a sentence.

Orders