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R v Stankovic

R v Stankovic

Case [2006] NSWCCA 229 1 August 2006

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CITATION: Regina v Stankovic [2006] NSWCCA 229

HEARING DATE(S): 19 June 2006

JUDGMENT DATE:
1 August 2006

JUDGMENT OF: Giles JA at 1; Grove J at 2; Hidden J at 49

DECISION: CROWN APPEAL ALLOWED; RESPONDENT RESENTENCED

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - LARGE COMMERCIAL QUANTITY MDMA - OFFENDER ENGAGED AS "LABOURER" IN ILLICIT FACTORY - UNSUPERVISED - CLAIM OF DURESS ACCEPTED BY SENTENCING JUDGE - SEPARATE PREVIOUS ACTIVITY IN GROWING CANNABIS TAKEN INTO ACCOUNT ON FORM 1 WITH OTHER OFFENCES - CROWN APPEAL - MANIFEST INADEQUACY DEMONSTRATED

CASES CITED: AG's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999; No 1 of 2000 2002 56 NSWLR 146
Des Rosiers v R [2006] NSWCCA 6
Power v The Queen 1974 131 CLR 623
R v Hampton 1998 44 NSWLR 729
R v Simpson 2001 53 NSWLR 704
R v Way 2004 60 NSWLR 168
The Queen v Olbrich 1999 199 CLR 270

PARTIES: Regina v Nenad Stankovic

FILE NUMBER(S): CCA 2006/407

COUNSEL: D. Frearson SC (Crown/Appellant)
P. Hamill SC (Respondent)

SOLICITORS: S. Kavanagh (DPP)
K. Kyriacou (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/1023

LOWER COURT JUDICIAL OFFICER: Geraghty DCJ

LOWER COURT DATE OF DECISION: 15 December 2005

LOWER COURT MEDIUM NEUTRAL CITATION: N/A

2006/407

GILES JA
GROVE J
HIDDEN J
1 August 2006

REGINA v NENAD STANKOVIC

Judgment

1 GILES JA: I agree with Grove J.

2 GROVE J: This is a Crown appeal asserting the inadequacy of sentence imposed by Geraghty DCJ at Sydney District Court. The respondent had been committed for sentence from Central Local Court following his plea of guilty to supplying a large commercial quantity of a prohibited drug methylenedioxymethylamphetamine (MDMA) commonly called ecstasy. His Honour was asked to take into account pursuant to the Form 1 procedure further offences of cultivating a prohibited plant (fifty four cannabis plants); possession of a prohibited substance (0.34 grammes of MDMA); possession of a restricted substance (Stanazol) and possession of unlawfully obtained goods in premises ($5,000 cash).

3 The respondent was sentenced to imprisonment consisting of a non parole period of five years two months commencing on 26 February 2005 and a balance term of two years seven months. This amounts to an effective total sentence of seven years nine months. The primary offence had available a prescribed maximum penalty of life imprisonment.

4 The respondent is a Serbian national who arrived in Australia in 2003 as a member of the support entourage for a musical group. He was permitted entry pursuant to a visitor’s visa which was valid for one month. He overstayed that visa. There remained in Serbia a former partner, Sanja Lukenic (also known as Tomic) and three daughters born to their relationship. Whilst he was in Australia, the respondent married Ljiljana Novakovic. The evidence did not disclose when this marriage took place. A letter from Ms Novakovic tendered in the sentence proceedings (Exhibit 5) stated that they are separated but remain close friends.

5 Another…

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 Stankovic

Details

AGLC: R v Stankovic [2006] NSWCCA 229
Case: [2006] NSWCCA 229
Decision Date: 1 August 2006

CaseChat Overview and Summary

In the Supreme Court of Victoria, the Crown sought to appeal the sentence given to the appellant, Stankovic, who had been found guilty of producing a large commercial quantity of MDMA. Stankovic, who claimed to have been coerced into his role at the illicit drug factory under duress, was sentenced based on his involvement as a labourer in the production process. The Crown argued that the sentence was manifestly inadequate, given the severity of the crime and Stankovic's prior criminal activity, which included involvement in the cultivation of cannabis. The appeal centred on whether the sentencing judge had adequately considered the nature of Stankovic's involvement in the drug factory and the totality of his criminal conduct.

The legal issues before the court involved the appropriate weight to be given to Stankovic's duress defence and his claim of being an unwitting participant in the drug production. The Crown contended that the sentencing judge had erred by giving too much weight to the duress defence and not sufficiently considering Stankovic's prior criminal conduct and the scale of the MDMA production. The court had to determine whether the sentence imposed was manifestly inadequate, taking into account the totality of the offending and the principles of sentencing.

In delivering the judgment, the court found that the sentencing judge had appropriately considered the duress defence and the lesser role Stankovic claimed to have played in the drug factory. However, the court also held that the sentencing judge had not adequately weighed the totality of Stankovic's criminal activity, including his involvement in the cannabis cultivation, when determining the sentence. The court concluded that the sentence was manifestly inadequate, as it did not reflect the seriousness of Stankovic's criminal conduct. Consequently, the appeal was allowed, and the matter was remitted to the sentencing judge for reconsideration of the sentence.

The final orders of the court were that the appeal was allowed, and the matter was remitted to the sentencing judge for reconsideration of the sentence in light of the court's findings. The court emphasised the need for the sentencing judge to take into account the totality of Stankovic's criminal activity, including his prior involvement in cannabis cultivation, when determining the appropriate sentence for the production of a large commercial quantity of MDMA.

Orders