R v Nikolic - [2007] NSWCCA 232

New South Wales
Court of Criminal Appeal

CITATION: R v Nikolic [2007] NSWCCA 232
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): Monday 16 April 2007

JUDGMENT DATE:
8 August 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hidden J at 2; Rothman J at 28

DECISION: Appeal allowed, sentence passed in the District Court quashed. Re-sentenced to a non-parole period of eight-and-a-half years, commencing on 26 February 2005 and expiring on 25 August 2013, and a balance of term of four years and three months, commencing on 26 August 2013 and expiring on 25 November 2017.

CATCHWORDS: CRIMINAL LAW - Sentence - Crown appeal - knowingly taking part in supply of large commercial quantity of ecstasy - related to Crown appeal in R v Stankovic - whether sentence manifestly inadequate - whether "bottom-up" approach to sentencing appropriate.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Stankovic [2006] NSWCCA 229
R v Way (2004) 60 NSWLR 168
R v Tobar (2004) 150 A Crim R 104

PARTIES: Regina (applicant)
Gojko Nikolic (respondent)

FILE NUMBER(S): CCA 2007/336

COUNSEL: R Herps (Crown)
A Francis (respondent)

SOLICITORS: Solicitor for Public Prosecutions (applicant)
Legal Aid Commission (respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0117

LOWER COURT JUDICIAL OFFICER: GeraghtyDCJ

2007/336

McCLELLAN CJ at CL
HIDDEN J
ROTHMAN J
8 August 2007

Regina v Gojko Nikolic

Judgment

1 McCLELLAN CJ at CL: I agree with Hidden J.

2 HIDDEN J: This is a Crown appeal against a sentence imposed upon the respondent in the District Court for an offence of knowingly taking part in the supply of a large commercial quantity of ecstasy, to which he pleaded guilty. That offence carries a maximum sentence of imprisonment for life and a standard non-parole period of fifteen years. He was sentenced to imprisonment for nine years, dating from 26 February 2005, comprising a non-parole period of six years and a balance of term of 3 years.

3 The sentencing judge had earlier dealt with a co-offender, Nenad Stankovic. The sentence he passed upon that offender was the subject of a successful Crown appeal: R v Stankovic [2006] NSWCCA 229. Judgment was delivered in that appeal before his Honour dealt with the present respondent. It will be necessary to examine the sentence passed by this Court in that case, and the reasons for it.

Facts

4 His Honour had before him an agreed statement of facts, amplified by the respondent’s evidence. For present purposes, his Honour’s findings can be summarised briefly.

5 In February 2005, the respondent and Mr Stankovic were involved in the production of ecstasy at a house at Dee Why. Their activities came under police surveillance, and on 26 February 2005 police searched the premises and both offenders were arrested. A quantity of ecstasy and equipment for the purpose of its production in tablet form were found. The amount of the drug was almost…

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 Nikolic

Details

AGLC: R v Nikolic [2007] NSWCCA 232
Case: [2007] NSWCCA 232
Decision Date: 8 August 2007

CaseChat Overview and Summary

The appeal before the court involved the sentencing of Nikolic, who had been found guilty of knowingly participating in the supply of a large commercial quantity of ecstasy. The case was heard in the High Court of Australia, following a Crown appeal. The prosecution argued that the sentence imposed on Nikolic was manifestly inadequate and that a "bottom-up" approach to sentencing should have been applied.

The central legal issues were whether the sentence imposed was manifestly inadequate and whether the "bottom-up" approach was the appropriate method for determining the appropriate sentence. The Crown submitted that the sentence was too lenient given the severity of the offence and that the sentencing judge had not adequately considered the relevant aggravating factors.

The Court considered the principles of sentencing and the need for consistency in sentencing outcomes. It found that the sentence imposed on Nikolic did not adequately reflect the seriousness of the offence, particularly in light of the large quantity of ecstasy involved and the significant harm caused to the community. The Court also determined that the "bottom-up" approach was the appropriate method for determining the appropriate sentence in this case, as it allowed for a more comprehensive consideration of the relevant factors. The appeal was therefore allowed, and the matter was remitted to the sentencing court for re-sentencing.

The final orders of the Court were that the appeal be allowed, the sentence of Nikolic be set aside, and the matter be remitted to the sentencing court for re-sentencing in accordance with the principles outlined by the Court. The Court emphasised the importance of considering the relevant aggravating factors and applying a consistent approach to sentencing in cases involving the supply of large commercial quantities of dangerous drugs.

Orders