R v Novakovic

Case [2004] NSWCCA 437

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Regina v Novakovic [2004]  NSWCCA 437

FILE NUMBER(S):
2004/2385

HEARING DATE(S):               18 November 2004

JUDGMENT DATE: 06/12/2004

PARTIES:
Regina
Michael NOVAKOVIC

JUDGMENT OF:       Sully J Hidden J Howie J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          02/11/1108

LOWER COURT JUDICIAL OFFICER:     Woods DCJ

COUNSEL:
G. Rowling - Crown
S. Odgers SC - Appellant

SOLICITORS:
S. Kavanagh - Crown
M. Ricci (The Law Practice) - Appellant

CATCHWORDS:

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999 (NSW)

DECISION:
Leave to appeal against sentence granted
Appeal against sentence allowed to extent: (a) of quashing sentence passed in connection with Count 6; and of re-sentencing appellant on that count to imprisonment for 3 years to commence on 28/10/03 and to expire on 27/10/06, with a non-parole period of 2 years to commence on 28/10/03 and expire on 27/10/05, upon which date it is ordered the applicant be released to parole; and (b) by varying the sentence passed in connection with Count 2 by appending to it a non-parole period of 2 years to commence on 28/10/03 and expire on 27/10/05, upon which date it is ordered that the applicant be released to parole.
Save as aforesaid, sentences passed in District Court confirmed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/2385

SULLY J
HIDDEN J
HOWIE J

6 December 2004

REGINA  v  Michael NOVAKOVIC

Judgment

  1. SULLY J:             In May and June 2004 his Honour Judge Woods QC, in the District Court at Sydney, passed various sentences and made various orders in the cases of four co-offenders of whom Mr. Novakovic, the present applicant, was one. The others were: Detlef Hansel; Frank Panebianco; and Frank Porreca. Mr. Hansel and Mr. Porreca were dealt with on 14 May 2004. The applicant and Mr. Panebianco were dealt with on 11 June 2004. It will become necessary to consider later herein the detail of the various sentences and penalties.

  2. The co-offender Hansel pleaded guilty to two charges of having knowingly taken part in the manufacture of not less than the legally prescribed commercial quantity of methylamphetamine, a prohibited drug. He was sentenced to concurrent sentences of imprisonment for 12 months with a non-parole period of 9 months, the commencing date in each case being 14 May 2004. An order was made suspending the whole of that sentence upon his entering into a conventionally conditioned good behaviour bond, having a duration of 12 months. This morning the Court has handed down a reserved judgment dismissing a Crown appeal against these sentences. The Court has held that the sentences were erroneous in various respects; but that given exceptionally powerful subjective considerations, the Court ought, in the exercise of its residual discretion, not to intervene.

  3. The co-offender Porreca pleaded guilty to a charge that between 25 and 26 August 2001 he had in his possession a quantity of pseudoephedrine, a precursor intended by him for use in the manufacture by Frank Panebianco of methylamphetamine, a prohibited drug. He was sentenced to imprisonment for…

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Details
AGLC
R v Novakovic [2004] NSWCCA 437
Case
[2004] NSWCCA 437
Decision Date

CaseChat Overview and Summary

The case of R v Novakovic involved the appellant challenging the sentence imposed upon him in the District Court of New South Wales. The appellant was convicted on multiple counts, including serious drug offences. The primary issue before the court was whether the sentence imposed by the District Court was appropriate, and if not, whether the sentence should be altered to reflect any special circumstances or errors in the original sentencing process.

The legal issues that the court had to decide included whether the sentence imposed for Count 6, which was for four years imprisonment, was too harsh considering the special circumstances identified in the appeal, and whether the non-parole period of two years was justified. The court was also required to consider whether the sentence for Count 2 should be modified by adding a non-parole period, as argued by the appellant.

The court found that there was indeed scope for a modest reduction in the non-parole period for Count 6 due to the special circumstances presented. The judge acknowledged that the sentence for Count 6 could be reduced to three years of imprisonment with a non-parole period of two years. This adjustment reflected the special circumstances and aimed to achieve practical justice. Additionally, the court decided to impose a non-parole period of two years on Count 2, as proposed. Consequently, the appeal was partially allowed, and the sentence was modified accordingly. The court granted leave to appeal against the sentence, quashed the original sentence for Count 6, and re-sentenced the appellant to three years imprisonment with a two-year non-parole period, effective from the date of the original sentence. The sentences for the other counts were confirmed, except for the modifications to Counts 2 and 6 as outlined.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

SULLY J
In my opinion there is some proper scope for some modest reduction in an otherwise appropriate non-parole period by reason of the aforesaid special circumstances. To that extent I would uphold Ground 4.Conclusions and Orders The applicant’s success on Grounds 2 and 4 should be implemented, in my opinion, by a suitable adjustment of the sentence passed in connection with Count 6. I think that practical justice would be done by reducing the head sentence on that count from one of imprisonment for 4 years to one of imprisonment for 3 years, with a non-parole period of 2 years, that non-parole period reflecting a finding, which I would make, of “special circumstances”, as previously herein identified. I would propose a complementary variation, as outlined in paragraph 20, of the sentence passed in connection with Count 2. I propose, therefore, these orders:[1] That leave to appeal against sentence be granted;[2] That the appeal against sentence be allowed to the extent: (a) of quashing the sentence passed in connection with Count 6; and of re-sentencing the appellant on that count to imprisonment for 3 years to commence on 28 October 2003 and to expire on 27 October 2006, with a non-parole period of 2 years to commence on 28 October 2003 and to expire on 27 October 2005, upon which date it is ordered that the applicant be released to parole; (b) by varying the sentence passed in connection with Count 2 by appending to it a non-parole period of 2 years to commence on 28 October 2003 and to expire on 27 October 2005, upon which date it is ordered that the applicant be released to parole. [3] That, save as aforesaid, the sentences passed in the District Court be confirmed. HIDDEN J: I agree with Sully J. HOWIE J: I agree with Sully J

Ratio Decidendi

Legal Principle Established

Established by: SULLY J

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