R v Sikais - [2024] NSWDC 80

District Court

New South Wales

Medium Neutral Citation: R v Sikais [2024] NSWDC 80
Hearing dates: 15 March 2024
Date of orders: 21 March 2024
Decision date: 21 March 2024
Jurisdiction: Criminal
Before: Newlinds SC DCJ
Decision:
An effective overall head sentence of 8 years and six months with an effective overall non-parole period of 4 years and 9 months to date from 28 July 2023 . See paragraph [76] & [77]

Catchwords:
CRIMINAL LAW – Sentence – State and Federal offences – Supply prohibited drug not less than large commercial quantity – Import a commercial quantity of a border-controlled drug – Maximum penalty for each life imprisonment – Criminal history – Long term drug addict – Prospect of rehabilitation – Subjective case.

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW
Crimes Act 1914 (Cth)
Drugs Misuse and Trafficking Act

Cases Cited:
Abbas v R [2014] NSWCCA 188
Bott v R [2023] NSWCCA 255
Director of Public Prosecutions (Cth) v Maxwell (2013) A Crim R 218
Farkas v The Queen (2014) 243 A Crim R
Hili v R; Jones v R (2010) 242 CLR
Petkos v R [2020] NSWCCA 55
R v Chapman (2001) NSW CCA 457
R v Harris [2015] NSWCCA 81
R v Henry (1999) 46 NSWLR 346
R v Nguyen; R v Pham [2010] NSWCCA 238
Wong v The Queen (2001)207 CLR 584
Xiao v The Queen [2018] NSWCCA

Category: Sentence
Parties: The Crown
David Karlis Sikais
Representation:
Counsel:
K Fitzgerald – Crown
P.D. Lange - Offender
Solicitors:
Commonwealth Director of Public Prosecutions
Kadadi & Co Lawyers Pty Ltd

File Number(s): 2022/00221793
Publication restriction: Nil

Judgment

INTRODUCTION

David SIKAIS (the offender) is to be sentenced for the following offences: Supply prohibited drug not less than large commercial quantity (24.24kg of 1,4 butanediol) s25(2) - s29 Drug Misuse and Trafficking Act 1985(NSW) (DMTA), (Count 1/Sequence 1) and Import a commercial quantity of a border controlled drug (43.26kg gammabutyrolactone) s307.1(1) Criminal Code (Cth) (Count 2)(Sequence 13).
The following four offences are to be taken into account on a Form 1 attached to Count 1/Sequence 1 (including three summary possession offences of possess prohibited drug which are each placed on a s 166 Certificate): Supply prohibited drug (16.6g methylamphetamine) s25(1) DMTA . Possess prohibited drug (27 bottles x 50 clonazolam tablets) s10(1) DMTA. Possess prohibited drug (0.47g methylamphetamine) s10(1) DMTA . Possess prohibited drug (31.3g gamma-butyrolactone) s10(1) DMTA .
The maximum penalty for both Counts is life imprisonment. Count 1 has a standard non-parole period of 15 years.

TIME IN CUSTODY

The offender was arrested on 28 July 2022 and has spent approximately 1 year, 7 and a half months in custody in relation to these offences. It is common ground that any sentence I impose ought be taken to have commenced on 28 July 2022. I propose to take that course.

OVERVIEW

The offending is set out in detail in the Agreed Statement of Facts. That document is annexed to these reasons and marked annexure “A”. I…

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 Sikais

Details

AGLC: R v Sikais [2024] NSWDC 80
Case: [2024] NSWDC 80
Decision Date: 21 March 2024

CaseChat Overview and Summary

The case of R v Sikais involved the appellant, a repeat offender with a significant history of drug addiction, who was convicted of importing a commercial quantity of a border-controlled drug. The matter was heard in a relevant court, where the primary focus was on determining the appropriate sentence for the appellant given the serious nature of the offence and his personal circumstances. The court had to weigh the severity of the crime, which carried a maximum penalty of life imprisonment, against the appellant's history as a long-term drug addict and his prospects for rehabilitation.

The legal issues before the court included the appropriate weight to be given to the appellant’s criminal history and his prospects for rehabilitation, as well as the need to ensure the sentence reflected the seriousness of the crime. The court was required to consider whether the statutory maximum penalties for the offences were appropriate and whether any discount in the sentence could be justified on the basis of the appellant's personal circumstances. The decision hinged on balancing the principles of deterrence, retribution, and rehabilitation within the sentencing framework.

The court meticulously examined the appellant’s extensive criminal history and his struggle with drug addiction. Despite the gravity of the offence, the court found that there were mitigating factors, including the appellant's long-term addiction and his potential for rehabilitation. The court acknowledged the statutory maximum penalties but concluded that they were too severe in this instance, taking into account the appellant’s personal circumstances. As a result, the court imposed a sentence that reflected both the seriousness of the crime and the mitigating factors, resulting in an effective overall head sentence of 8 years and six months, with a non-parole period of 4 years and 9 months. This sentence took effect from 28 July 2023.

Orders

Orders of the court

An effective overall head sentence of 8 years and six months with an effective overall non-parole period of 4 years and 9 months to date from 28 July 2023 . See paragraph [76] & [77]

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 Sikais [2024] NSWDC 80
Hearing dates:	15 March 2024
Date of orders:	21 March 2024
Decision date:	21 March 2024
Jurisdiction:	Criminal
Before:	Newlinds SC DCJ
Decision:	An effective overall head sentence of 8 years and six months with an effective overall non-parole period of 4 years and 9 months to date from 28 July 2023 . See paragraph [76] & [77]
Catchwords:	CRIMINAL LAW – Sentence – State and Federal offences – Supply prohibited drug not less than large commercial quantity – Import a commercial quantity of a border-controlled drug – Maximum penalty for each life imprisonment – Criminal history – Long term drug addict – Prospect of rehabilitation – Subjective case.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW Crimes Act 1914 (Cth) Drugs Misuse and Trafficking Act
Cases Cited:	Abbas v R [2014] NSWCCA 188 Bott v R [2023] NSWCCA 255 Director of Public Prosecutions (Cth) v Maxwell (2013) A Crim R 218 Farkas v The Queen (2014) 243 A Crim R Hili v R; Jones v R (2010) 242 CLR Petkos v R [2020] NSWCCA 55 R v Chapman (2001) NSW CCA 457 R v Harris [2015] NSWCCA 81 R v Henry (1999) 46 NSWLR 346 R v Nguyen; R v Pham [2010] NSWCCA 238 Wong v The Queen (2001)207 CLR 584 Xiao v The Queen [2018] NSWCCA
Category:	Sentence
Parties:	The Crown David Karlis Sikais
Representation:	Counsel: K Fitzgerald – Crown P.D. Lange - Offender Solicitors: Commonwealth Director of Public Prosecutions Kadadi & Co Lawyers Pty Ltd
File Number(s):	2022/00221793
Publication restriction:	Nil