R v Szelenczy - [2001] NSWCCA 75

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v Szelenczy [2001] NSWCCA 75

FILE NUMBER(S):
60583/00

HEARING DATE(S): 16/03/01

JUDGMENT DATE: 16/03/2001

PARTIES:
Regina v Janos Szelenczy

JUDGMENT OF: Ipp AJA Wood CJ at CL Simpson J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/11/0273

LOWER COURT JUDICIAL OFFICER: Mahoney DCJ

COUNSEL:
(Appellant): B T Stratton QC
(Crown): D G Staehli

SOLICITORS:
(Appellant): M Rumore
(Crown): Commonwealth DPP

CATCHWORDS:
CRIMINAL LAW - importation of a traffickable quantity of cocaine - application for leave to appeal against sentence - mitigating factors - allegation that application was low in hierarchy, "mere courier" - what offender did is determinative of sentence - personal circumstances and antecedents are not of significant weight in drug importation matters - application refused.

LEGISLATION CITED:
Customs Act 1901

DECISION:
Application for leave to appeal against sentence refused.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60583/00

IPP AJA
WOOD CJ AT CL
SIMPSON J

Friday 16 March 2001

REGINA v Janos SZELENCZY

JUDGMENT

IPP AJA: This is an application for leave to appeal against sentence. On 25 August 2000 the applicant pleaded guilty before Mahoney DCJ to a charge that, at Sydney, between 15 and 23 December 1999, he imported into Australia not less than the trafficable quantity of cocaine, contrary to s 233B(1)(b) of the Customs Act 1901.
A trafficable quantity of cocaine for the purposes of the Customs Act is between 2 and 2000 grams. The total weight of the substance imported was 953.3 grams. The cocaine was found to be 65 percent pure, meaning that the weight of pure cocaine imported was 614.4 grams.
The maximum sentence for the offence is 25 years imprisonment and/or a fine of $100,000. (S 235(2)(d)(i) of the Customs Act.)
The applicant was sentenced to imprisonment for a period of 9 years with a non-parole period of 5 years.
I shall set out in summary form the facts in relation to the commission of the offence.
On 19 November 1999 a co-accused of the applicant, Toni Cerullo booked for the applicant and his wife to fly from Sydney to Budapest then to Frankfurt and then to return to Sydney on 23 November 1999. The applicant flew alone on that journey that day. Before embarking on his flight in Sydney he met with another co-accused, Jim Soukoulis.
Senior counsel for the applicant submitted that Cerullo and Soukoulis were the moving lights in the drug transaction that followed, and have a higher degree of responsibility in that transaction than the applicant himself. I accept that submission.
On 17 December 1999 the applicant arrived in Sydney by air from Europe. Customs searched his belongings and found a DHL shipping label for a parcel of documents sent from Frankfurt to himself in Rose Bay.
Over the next few days the applicant exchanged telephone calls with a number of people including Soukoulis and Cerullo in which the lack of developments in relation to the arrival of a parcel in Sydney were…

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 Szelenczy

Details

AGLC: R v Szelenczy [2001] NSWCCA 75
Case: [2001] NSWCCA 75
Decision Date: 16 March 2001

CaseChat Overview and Summary

The case of R v Szelenczy involved the respondent, Szelenczy, who had been found guilty of importing a traffickable quantity of cocaine into Australia. Szelenczy applied for leave to appeal against the sentence imposed by the court. The High Court of Australia was tasked with determining whether the application should be granted.

The central legal issue was whether Szelenczy's role in the importation, which was described as that of a "mere courier," warranted a lower position in the sentencing hierarchy. The court considered the significance of personal circumstances and antecedents in drug importation cases. It was essential to determine if these factors should play a significant role in the sentencing process or if the nature of the offence itself should be the primary consideration.

In delivering the judgment, the court held that the focus should be on what the offender did rather than their personal circumstances. It emphasised that in drug importation matters, the nature of the offence takes precedence over personal circumstances and antecedents. Consequently, Szelenczy's application for leave to appeal against the sentence was refused. The court's decision underscored the importance of the offence's gravity in determining the appropriate sentence in such cases.

Orders