R v Ognenovski - [2020] NSWDC 884

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Ognenovski [2020] NSWDC 884
Hearing dates: 15 December 2020
Decision date: 15 December 2020
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of 7 years, 3 months with a non-parole period of 4 years, 3 months.

Catchwords:
CRIME – Supply prohibited drug > commercial quantity- rolled up quantity.
SENTENCING — Relevant factors on sentence —early plea - role in criminal group - solid prospects for rehabilitation with strong family support

Legislation Cited:
Confiscation of Proceeds of Crime Act 1989
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Hamzy v R (1994) 74 A Crim R 341
Jadron v R [2015] NSWCCA 217
Markarian v The Queen (2005) 228 CLR 357

Category: Sentence
Parties: David Joseph Ognenovski (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr C Smith SC (for the offender)
Solicitors:
Morrisons Law (for the offender)
Ms A Bird (for the Director of Public Prosecutions)

File Number(s): 2019/00255775; 2019/00366380

SENTENCE – EX TEMpore revised

David Ognenovski was born in 1993. He was raised locally in Wollongong. He received solid support from his family. As a young man he had ambitions to pursue a professional football career; that ambition was thwarted by a number of injuries.
Despite his family support he did not apply himself to work, study or his apprenticeships; in the way I suspect his parents expected him to. He showed a lack of motivation. He formed a poor relationship. There was his general use of the drug cannabis. And, it would appear in his 20s he took up the use of the drug cocaine. Although not supported by evidence on oath he told his psychologist that he became indebted to his cocaine supplier. The notion of selling that drug appealed to him as it would enable him to meet his debts, and to meet his own personal needs, both for using the drug recreationally and for an income.
His psychologist says that he has a number of negative personality traits, including narcissism and insensitivity to the needs and feelings of others. These, together with, anxiety and instability, made him vulnerable to the uptake of drugs. His lack of empathy for others is evident in his embracing of the role of drug supplier; as evidenced in the agreed facts before the Court.
It is tragic that a person, who is fundamentally pro-social, with strong pro- social supports, now finds himself in custody and facing a further term of custody. He is blessed, in a sense, with the continuing support of his family and his new partner. And, it would appear from all the material before me, that having overcome the real anxiety and depression that comes from any sane person being incarcerated, he has resolved to turn his life around. He says he has learnt the lesson, the harsh lesson, that gaol and custody is meant to serve.
But he faces court for sentence today for two particularly serious offences. Each involves the supply of…

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 Ognenovski

Details

AGLC: R v Ognenovski [2020] NSWDC 884
Case: [2020] NSWDC 884
Decision Date: 15 December 2020

CaseChat Overview and Summary

The case of R v Ognenovski arose in the Supreme Court of New South Wales, where the defendant, Ognenovski, faced charges relating to the supply of a prohibited drug in a commercial quantity. The central issue was the characterisation of the quantity of drugs as being in a rolled-up form and thus qualifying as a commercial quantity. The court was tasked with determining the appropriate sentence to be imposed on Ognenovski, taking into account several relevant factors, including his early plea, his role within the criminal group, and his prospects for rehabilitation, which were supported by his strong family ties.

The primary legal issues before the court were whether the quantity of drugs supplied constituted a commercial quantity and, if so, how this factor should influence the sentencing. The court had to weigh the severity of the offence against mitigating factors such as the defendant's early plea and his potential for rehabilitation. Ognenovski's legal team argued that the rolled-up quantity did not meet the threshold for a commercial quantity and that his role in the criminal activity was relatively minor. The prosecution, however, emphasised the significant quantity of drugs involved and the defendant's involvement in a larger criminal enterprise.

In delivering the judgment, the court found that the quantity of drugs did indeed qualify as a commercial quantity due to its rolled-up form. The court acknowledged Ognenovski's early plea and his prospects for rehabilitation, which were bolstered by his strong family support system. Despite these mitigating factors, the court determined that the gravity of the offence warranted a substantial sentence. The court ultimately imposed an aggregate sentence of 7 years and 3 months imprisonment, with a non-parole period of 4 years and 3 months, reflecting a balance between the need for punishment and the potential for rehabilitation.

The court's final orders were for Ognenovski to serve a total of 7 years and 3 months in prison, with a non-parole period of 4 years and 3 months. This sentence recognised the seriousness of the offence while also considering the mitigating factors presented by the defence.

Orders

Orders of the court

Aggregate sentence of 7 years, 3 months with a non-parole period of 4 years, 3 months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Ognenovski [2020] NSWDC 884
Hearing dates:	15 December 2020
Decision date:	15 December 2020
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of 7 years, 3 months with a non-parole period of 4 years, 3 months.
Catchwords:	CRIME – Supply prohibited drug > commercial quantity- rolled up quantity. SENTENCING — Relevant factors on sentence —early plea - role in criminal group - solid prospects for rehabilitation with strong family support
Legislation Cited:	Confiscation of Proceeds of Crime Act 1989 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Hamzy v R (1994) 74 A Crim R 341 Jadron v R [2015] NSWCCA 217 Markarian v The Queen (2005) 228 CLR 357
Category:	Sentence
Parties:	David Joseph Ognenovski (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr C Smith SC (for the offender) Solicitors: Morrisons Law (for the offender) Ms A Bird (for the Director of Public Prosecutions)
File Number(s):	2019/00255775; 2019/00366380