R v Simonovski - [2020] NSWDC 848

District Court

New South Wales

Medium Neutral Citation: R v Simonovski [2020] NSWDC 848
Hearing dates: 11-14, 17-21, & 24 August 2020 (Trial);
9 October 2020 (Sentence Hearing)
16 October 2020 (Sentence)
Date of orders: 16 October 2020
Decision date: 16 October 2020
Jurisdiction: Criminal
Before: R. J. Weber SC DCJ
Decision:
In respect of Count 1 on the Indictment, the offender is sentenced to a term of imprisonment of 3 years, with a non-parole period of 2 years.
The Court directs that such a term of imprisonment shall commence on 24 June 2020 and that the non-parole period shall expire on 23 June 2022, with the balance to expire on 23 June 2023.
The offender is convicted of the offences on the s 166 certificate.
In respect of Sequence 2 on the s 166 certificate, being the possession of a prohibited drug, namely 0.15g of methylamphetamine, the offender is sentenced to a term of imprisonment of 7 months, with no non-parole period, such sentence to commence on 24 June 2020 and expire on 23 January 2021.
In respect of Sequence 4 on the s 166 certificate, being the dealing with the proceeds of crime in the sum of $1,069.25, the offender is sentenced to a term of imprisonment of 7 months, with no non-parole period, such sentence to commence on 24 June 2020 and expire on 23 January 2021.

Catchwords:
CRIME — Drug offences – Ongoing supply of drugs – Indictable quantity – Less than commercial quantity – Methylamphetamine
CRIMINAL PROCEDURE — Back up and related offences — Procedures
SENTENCING — Commencement – Complicated matrix of factors in relation to pre-sentence custody and an appropriate start date – Offender on four Intensive Correction Orders at the time of offending

Legislation Cited:
Criminal Procedure Act 1984
Drug Misuse and Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Choi v R [2007] NSWCCA 150 at [157];
Markarian v The Queen (2005) 228 CLR 357 at [51];
Mill v The Queen (1988) 166 CLR 59 at 66; [1988] HCA 70;
Postiglione v The Queen (1997) 189 CLR 295 at [307-308];
Rafaieh v R [2018] NSWCCA 72 at [48];
R v Cahyadi [2007] 168 A Crim R 41 at [27];
R v Karageorge [1999] NSWCCA 213;
R v Van Ryn [2016] NSWCCA 1 at [228]-[230]

Category: Sentence
Parties: Regina
Natalie Simonovski (Offender)
Representation:
Counsel:
Mr P Allport (Offender)
Solicitors:
Ms H Bates (Solicitor-Advocate for the Crown)
Office of the Director of Public Prosecutions (Regina)
Mr L Angelovski (Offender)

File Number(s): 2019/155839
Publication restriction: None

Judgment

The offender comes before the Court for sentence having been found guilty by a jury of deemed supply of a prohibited drug, namely, methylamphetamine, in an amount being less than a commercial quantity. This is conduct contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (“DMTA”). The offence carries a maximum period of imprisonment of 15 years, with no standard non-parole period.
The offender also asked the court to…

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 Simonovski

Details

AGLC: R v Simonovski [2020] NSWDC 848
Case: [2020] NSWDC 848
Decision Date: 16 October 2020

CaseChat Overview and Summary

The case of R v Simonovski involved the defendant, Simonovski, who was charged with multiple drug-related offences. The primary charge was the ongoing supply of an indictable quantity of methylamphetamine, which was less than commercial quantity. The court also considered back-up and related charges, including the possession of a prohibited drug and dealing with the proceeds of crime. The case was heard in the relevant criminal court, where the presiding judge was tasked with determining the appropriate sentences for each offence.

The legal issues before the court included the assessment of the appropriate penalties for each offence, taking into account the defendant's history and the principles of sentencing. The court needed to balance the severity of the offences with the defendant's previous convictions and current circumstances, including his involvement in multiple Intensive Correction Orders at the time of the offending. The court also had to consider the commencement of the sentences and the appropriate start date, given the complexity of the defendant's situation.

In delivering the judgment, the court meticulously evaluated the defendant's background and the nature of the offences. The court acknowledged the defendant's prior involvement in Intensive Correction Orders and the circumstances surrounding the current offences. The court emphasised the need for a sentence that reflected the seriousness of the crimes while also considering the defendant's potential for rehabilitation. The court ultimately determined that the defendant should serve a term of imprisonment for the ongoing supply of methylamphetamine, with a non-parole period, and concurrent sentences for the possession and dealing with the proceeds of crime. The court ordered that the sentences commence on a specific date to ensure that the defendant's overall punishment was fair and just.

The final orders of the court were that the defendant was to serve a term of imprisonment of three years, with a non-parole period of two years, for the ongoing supply of methylamphetamine. For the possession of 0.15g of methylamphetamine and the dealing with the proceeds of crime, the defendant was sentenced to seven months imprisonment, with no non-parole period. All sentences were to commence on 24 June 2020, with specific expiry dates set for each offence.

Orders

Orders of the court

In respect of Count 1 on the Indictment, the offender is sentenced to a term of imprisonment of 3 years, with a non-parole period of 2 years.

The Court directs that such a term of imprisonment shall commence on 24 June 2020 and that the non-parole period shall expire on 23 June 2022, with the balance to expire on 23 June 2023.

The offender is convicted of the offences on the s 166 certificate.

In respect of Sequence 2 on the s 166 certificate, being the possession of a prohibited drug, namely 0.15g of methylamphetamine, the offender is sentenced to a term of imprisonment of 7 months, with no non-parole period, such sentence to commence on 24 June 2020 and expire on 23 January 2021.

In respect of Sequence 4 on the s 166 certificate, being the dealing with the proceeds of crime in the sum of $1,069.25, the offender is sentenced to a term of imprisonment of 7 months, with no non-parole period, such sentence to commence on 24 June 2020 and expire on 23 January 2021.

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 Simonovski [2020] NSWDC 848
Hearing dates:	11-14, 17-21, & 24 August 2020 (Trial); 9 October 2020 (Sentence Hearing) 16 October 2020 (Sentence)
Date of orders:	16 October 2020
Decision date:	16 October 2020
Jurisdiction:	Criminal
Before:	R. J. Weber SC DCJ
Decision:	In respect of Count 1 on the Indictment, the offender is sentenced to a term of imprisonment of 3 years, with a non-parole period of 2 years. The Court directs that such a term of imprisonment shall commence on 24 June 2020 and that the non-parole period shall expire on 23 June 2022, with the balance to expire on 23 June 2023. The offender is convicted of the offences on the s 166 certificate. In respect of Sequence 2 on the s 166 certificate, being the possession of a prohibited drug, namely 0.15g of methylamphetamine, the offender is sentenced to a term of imprisonment of 7 months, with no non-parole period, such sentence to commence on 24 June 2020 and expire on 23 January 2021. In respect of Sequence 4 on the s 166 certificate, being the dealing with the proceeds of crime in the sum of $1,069.25, the offender is sentenced to a term of imprisonment of 7 months, with no non-parole period, such sentence to commence on 24 June 2020 and expire on 23 January 2021.
Catchwords:	CRIME — Drug offences – Ongoing supply of drugs – Indictable quantity – Less than commercial quantity – Methylamphetamine CRIMINAL PROCEDURE — Back up and related offences — Procedures SENTENCING — Commencement – Complicated matrix of factors in relation to pre-sentence custody and an appropriate start date – Offender on four Intensive Correction Orders at the time of offending
Legislation Cited:	Criminal Procedure Act 1984 Drug Misuse and Trafficking Act 1985 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Choi v R [2007] NSWCCA 150 at [157]; Markarian v The Queen (2005) 228 CLR 357 at [51]; Mill v The Queen (1988) 166 CLR 59 at 66; [1988] HCA 70; Postiglione v The Queen (1997) 189 CLR 295 at [307-308]; Rafaieh v R [2018] NSWCCA 72 at [48]; R v Cahyadi [2007] 168 A Crim R 41 at [27]; R v Karageorge [1999] NSWCCA 213; R v Van Ryn [2016] NSWCCA 1 at [228]-[230]
Category:	Sentence
Parties:	Regina Natalie Simonovski (Offender)
Representation:	Counsel: Mr P Allport (Offender) Solicitors: Ms H Bates (Solicitor-Advocate for the Crown) Office of the Director of Public Prosecutions (Regina) Mr L Angelovski (Offender)
File Number(s):	2019/155839
Publication restriction:	None