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R v Nikolovska

R v Nikolovska

Case [2010] NSWCCA 169 22 December 2010

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New South Wales
Court of Criminal Appeal

CITATION: Regina v Nikolovska [2010] NSWCCA 169

HEARING DATE(S): 7/7/10

JUDGMENT DATE:
22 December 2010

JUDGMENT OF: Beazley JA at 1; Kirby J at 2; Johnson J at 107

DECISION: 1. Leave to appeal granted.
2. The sentence imposed by Nicholson DCJ on 25.9.09 quashed.
3. In lieu thereof, the respondent is sentenced to imprisonment with a non parole period of 4 years 9 months commencing on 10.12.07 and expiring on 9.9.12; with an additional term of 2 years 9 months expiring on 9.6.15. She will be eligible for parole on 9.9.12.

CATCHWORDS: CRIMINAL LAW - Crown appeal - importation of marketable quantity of cocaine (1.431 kg) - offender's role - not low in heirarchy - breach of trust - Qantas employee used security clearance - sentence manifestly inadequate - issue of parity with co-offender - sentenced by reference to offender's sentence - no Crown appeal against co-offender - discretion to intervene - application s68A Crimes (Appeal and Review) Amendment (Double Jeopardy) Act

LEGISLATION CITED: Criminal Code Act 1995
Crimes (Appeal and Review) Act 2001 (NSW)
Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009
Crimes Act 1914 (Cth)
Drug Misuse and Trafficking Act 1985
Judiciary Act 1903 (Cth)

CATEGORY: Principal judgment

CASES CITED: DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 243 FLR 28
R v Olbrich [1999] HCA 54; 199 CLR 270
House v The King (1936) 55 CLR 499
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
R v Carr [2002] NSWCCA 434; (2002) 135 A Crim R 171
R v Petroulias (No 36) [2008] NSWSC 626; (2008) 73 ATR 83
R v Wong and Leung [1999] NSWCCA 420; (1999) 48 NSWLR 340
R v Studenikin [2004] NSWCCA 164; 60 NSWLR 1
R v Rivadava [2004] NSWCCA 284; (2004) 61 NSWLR 63
Chan and Ors v Regina [2010] NSWCCA 153
Hili v The Queen [2010] HCA 45
R v To [2005] NSWCCA 362; 157 A Crim R 80
R v Ferrer-Esis (1991) 55 A Crim R 231
R v Barrientos [1999] NSWCCA 1
R v Acosta [1999] NSWCCA 334
R v Gallego [2002] NSWCCA 529
R v Paliwala [2005] NSWCCA 221; (2005) 153 A Crim R 451
R v SC [2008] NSWCCA 29
R v Mirzaee [2004] NSWCCA 315
R v Pham [2005] NSWCCA 314
Mohlasedi v R [2006] WASCA 267
Le v R [2006] NSWCCA 136
Teehan v R [2006] NSWCCA 401
R v Tran [2007] QCA 221; (2007) 172 A Crim R 426
Mirza v R [2007] NSWCCA 257
R v Huynh (2008) 180 A Crim R 517
R v Jimson [2009] QCA 183
R v Bernier (1998) 102 A Crim R 44
R v Green & Quinn [2010] NSWCCA 313
R v McIvor [2002] NSWCCA 490; (2002) 136 A Crim R 366
R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
Cvitan v R [2009] NSWCCA 156

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 Nikolovska

Details

AGLC: R v Nikolovska [2010] NSWCCA 169
Case: [2010] NSWCCA 169
Decision Date: 22 December 2010

CaseChat Overview and Summary

In this matter, the respondent, Nikolovska, was found guilty of importing 1.431 kilograms of cocaine into Australia. The Crown appealed against the sentence imposed on Nikolovska, arguing it was manifestly inadequate. Nikolovska had used her position as a Qantas employee to facilitate the importation, abusing her security clearance. The appeal raised questions about the offender's role in the criminal activity and the breach of trust involved. The Crown sought a higher sentence, contending that Nikolovska's role was not low in the hierarchy of the criminal activity and that the breach of trust warranted a more severe punishment.

The court was tasked with determining whether the sentence imposed on Nikolovska was manifestly inadequate and whether the offender's role and breach of trust warranted a more severe punishment. The court also had to consider the issue of parity with the co-offender, who had been sentenced by reference to Nikolovska's sentence. The Crown's appeal did not challenge the co-offender's sentence, which left the court to decide if the appeal should proceed under the provisions of section 68A of the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act. The court had to weigh the discretion to intervene and whether the appeal met the criteria for consideration under the Act.

The court found that the sentence imposed on Nikolovska was manifestly inadequate, taking into account her role in the importation of the cocaine and the breach of trust as a Qantas employee. The offender's position of trust and her abuse of that position warranted a more severe sentence. The court exercised its discretion to intervene and allowed the Crown's appeal. The final orders included the quashing of the original sentence and the re-sentencing of Nikolovska to a term of imprisonment with a non-parole period of eight years and six months, with parity to the co-offender's sentence.

Orders