R v Nikolovska, Anne - [2009] NSWDC 291

CITATION: R v Nikolovska, Anne [2009] NSWDC 291

HEARING DATE(S): 12/06/2009

JUDGMENT DATE:
25 September 2009

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: Convicted.
Sentence to a non-parole period of 3 years and 9 months. Balance of term of 2 years and 3 months.
HH order the release of the offender on the 9th September 2011.
Pursuant to Section 52 of the Crime (Sentencing Procedure) Act, HH order the offender be supervised by Probation and Parole.

CATCHWORDS: Criminal Law - Sentence - Commonwealth offence - importantion of border controlled drug - cocian - 1431gms - role facilitator assisting importer - security access to internationally imported freight - 49 year old female - guilty plea.

LEGISLATION CITED: Criminal Code Act 1995 (Cwth)
Crimes Act 1914 (Cwlth)

CASES CITED: Gladue v The Queen [1999] 1SCR 688 [80]
R v Cuthbert [1967] 2 NSWR 329
R v Rushby [1977] NSWLR 597
R v Hayes [1984] 1 NSWLR 740

PARTIES: Regina (Commonwealth)
Anne Nikolovska

FILE NUMBER(S): 2008/00026393

COUNSEL: Crown: M England
Defence: D Timmins

Sentence subject to Crown Appeal

JUDGMENT

1. Anne Nikolovska arrived in Australia with her parents in 1965 from Macedonia. As an adult she has been working at Qantas for 27 years in the Sydney Distribution Centre at Mascot. She was given security access to Qantas premises. It would appear that her work was centred at the Qantas Supply Facility in the Sydney Distribution Centre.

2. For some time before December 10, 2007 Federal Police were monitoring phone call activities of one, W.(name withheld) and Anne Nikolovska. As early as 18 October 2007, Federal Police were listening to coded conversations that could only have been about an unauthorised importation of a border control drug.

3. On 6 December 2007, Customs interrupted a DHL freight consignment containing oil filters. Those filters contained 1.96 kilograms of cocaine admixture. On 10 December 2007, Federal Police separately arrested Anne Nikolovska and W (name withheld).

4. Today Anne Nikolovska is to be held accountable for her involvement in the importation of a net 1431 grams of pure cocaine. As sentencing Judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for this offence before this court, committed by this offender, with the potential of harming a number of victims in this community, Gladue v The Queen [1999] 1SCR 688 [80]. My initial task requires an assessment of the objective criminality of the offence before the court. I will also need to have regard to matters personal to her. These are called subjective matters. The starting point for the assessments requires me to make findings of fact from the evidence before the court relating to both the offence and the offender.

5. An unusual feature of this case is what seems to me a delay between the offending, arrest and sentencing disposition. What, if any, impact that delay has will need to be assessed. The offender’s rehabilitation prospects will have to be assessed, even if looking…

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.

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Details

Case: [2009] NSWDC 291
Decision Date: 25 September 2009

CaseChat Overview and Summary

The case of R v Nikolovska, Anne involved the sentencing of a 49-year-old female for her role in the importation of a border controlled drug, cocaine, with a weight of 1431 grams. The defendant pleaded guilty to the offence, which was a Commonwealth offence. The nature of her involvement was that of a facilitator, assisting the importer by leveraging her security access to internationally imported freight. The case was heard and determined in a higher court, though the specific court is not mentioned in the text.

The legal issues before the court centred around the appropriate sentence for the defendant's role in the importation of a significant quantity of a border controlled drug. Key considerations included the defendant's role as a facilitator, her level of culpability, and her age at the time of sentencing. The court had to balance the severity of the offence with the defendant's role and personal circumstances to determine an appropriate sentence.

The court's reasoning involved a thorough examination of the facts and the defendant's role in the importation. The court recognised the seriousness of the offence given the quantity of the drug involved and the potential impact on the community. However, it also took into account the defendant's role as a facilitator, her age, and her guilty plea. Ultimately, the court determined a non-parole period of 3 years and 9 months, with the balance of the term being 2 years and 3 months. The court further ordered the defendant's release on 9th September 2011 and mandated supervision by Probation and Parole under Section 52 of the Crime (Sentencing Procedure) Act.

Orders

Orders of the court

Convicted.

Sentence to a non-parole period of 3 years and 9 months. Balance of term of 2 years and 3 months.

HH order the release of the offender on the 9th September 2011.

Pursuant to Section 52 of the Crime (Sentencing Procedure) Act, HH order the offender be supervised by Probation and Parole.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Nikolovska, Anne [2009] NSWDC 291
HEARING DATE(S):	12/06/2009
JUDGMENT DATE:	25 September 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted. Sentence to a non-parole period of 3 years and 9 months. Balance of term of 2 years and 3 months. HH order the release of the offender on the 9th September 2011. Pursuant to Section 52 of the Crime (Sentencing Procedure) Act, HH order the offender be supervised by Probation and Parole.
CATCHWORDS:	Criminal Law - Sentence - Commonwealth offence - importantion of border controlled drug - cocian - 1431gms - role facilitator assisting importer - security access to internationally imported freight - 49 year old female - guilty plea.
LEGISLATION CITED:	Criminal Code Act 1995 (Cwth) Crimes Act 1914 (Cwlth)
CASES CITED:	Gladue v The Queen [1999] 1SCR 688 [80] R v Cuthbert [1967] 2 NSWR 329 R v Rushby [1977] NSWLR 597 R v Hayes [1984] 1 NSWLR 740
PARTIES:	Regina (Commonwealth) Anne Nikolovska
FILE NUMBER(S):	2008/00026393
COUNSEL:	Crown: M England Defence: D Timmins