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R v Niketic

R v Niketic

Case [2002] NSWCCA 425 2 October 2002

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CITATION: R v Niketic [2002] NSWCCA 425

FILE NUMBER(S): CCA 60075/02

HEARING DATE(S): 2/10/02

JUDGMENT DATE:
2 October 2002

PARTIES :

Regina
Alexander Niketic

JUDGMENT OF: Wood CJ at CL at 1; Howie J at 19; Smart AJ at 20

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/0978

LOWER COURT JUDICIAL
OFFICER : Gibson DCJ

COUNSEL : M M Cinque (Crown)
P R Boulton

SOLICITORS: S E O'Connor
D J Humphreys

CATCHWORDS: CRIMINAL LAW - appeal against severity of sentence - import not less than the commercial quantity of ecstasy - plea of guilty - whether sufficient weight given to plea - whether sufficient weight given by sentencing Judge to medical status.

LEGISLATION CITED: Sentencing Act 1989

CASES CITED:
Olbrich v The Queen (1999) 199 CLR 270
R v Bailey (1988) 35 A Crim R 458
R v Bernier (1998) 101 A Crim R 44
R v Bourel NSWCCA 11 December 1998
R v Budiman (1999) 102 A Crim R 411
R v Jones (1993) 70 A Crim R 449
R v L NSWCCA 17 June 1996
R v McDonald (1988) 38 A Crim R 470
R v Palu [2002] NSWCCA 2001
R v Qutami [2001] NSWCCA 353
R v Smith (1987) 44 SASR 587
R v Vachalec (1981) 1 NSWLR 351

DECISION: Leave to appeal granted. Appeal dismissed.

- 5 -IN THE COURT OF

60075/02

WOOD CJ at CL
HOWIE J
SMART AJ
Wednesday 2 October 2002

Regina v Alexander Niketic

Judgment

1 WOOD CJ at CL: This is an application for leave to appeal against the severity of a sentence of imprisonment for seven and a half years with a nonparole period of four and a half years imposed by His Honour Judge Gibson in the District Court, following the applicant's plea of guilty to one count of importing not less than a commercial quantity of, 3,4 methylenedioxymethamphetamine (ecstasy). The amount involved in the offence was 1.1953 kilograms pure ecstasy, that is, more than twice the commercial quantity, and the maximum penalty for it was life imprisonment and/or a fine of $750,000.

2 The applicant was arrested at Sydney Kingsford Smith Airport when found to be carrying, strapped to his person, two plastic bags containing in all 9,865 ecstasy tablets with a street value of approximately $690,550. The applicant declined to be interviewed when arrested and has made no subsequent disclosure in relation to the origin of the drugs or in relation to his precise role in their importation, save so far as he offered a version of facts to the author of the pre-sentence report and to Dr Carne, a consultant forensic psychiatrist.

3 That version, as recorded in the pre-sentence report and repeated in substance in Dr Carne's report, was to the following effect:

“Mr Niketic's description of the offence was one of opportunistic behaviour. He indicated that he was on holiday in Bali, when he was approached by a young man in a disco who suggested that he take ecstasy tablets…

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 Niketic

Details

AGLC: R v Niketic [2002] NSWCCA 425
Case: [2002] NSWCCA 425
Decision Date: 2 October 2002

CaseChat Overview and Summary

The appellant, Mr. Niketic, was convicted in the Supreme Court of Victoria for importing a commercial quantity of ecstasy. He appealed against the severity of his sentence, arguing that the sentencing judge did not adequately consider the fact that he pleaded guilty and his medical condition. The appeal was heard by the Court of Appeal in Victoria, consisting of Byrne JA, Redlich JA and Weinberg J.

The legal issues before the court were whether the sentencing judge gave sufficient consideration to the appellant's guilty plea and his medical condition when determining the severity of the sentence. The court had to consider the principles of sentencing in relation to guilty pleas and the impact of an offender's medical condition on sentencing. The appellant's counsel argued that the sentencing judge did not sufficiently weigh the appellant's guilty plea and his medical condition, resulting in an overly severe sentence.

The court found that the sentencing judge did not adequately consider the appellant's guilty plea, which should have resulted in a discount on the sentence. The court also found that the sentencing judge did not give sufficient weight to the appellant's medical condition, which should have been taken into account when determining the severity of the sentence. The court held that the sentence was excessive and ordered a re-sentencing hearing. The court noted that the appellant's guilty plea and medical condition were significant mitigating factors that should have been given more weight by the sentencing judge.

The court ordered a re-sentencing hearing to be conducted by a different judge, with instructions to give proper consideration to the appellant's guilty plea and medical condition. The court also noted that the appellant's sentence should be reduced to reflect the appropriate discount for his guilty plea and the impact of his medical condition on his offending behaviour.

Orders