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R v Todoroski

R v Todoroski

Case [2010] NSWCCA 75 30 April 2010

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New South Wales
Court of Criminal Appeal

CITATION: R v Todoroski [2010] NSWCCA 75
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 21 April 2010

JUDGMENT DATE:
30 April 2010

JUDGMENT OF: Allsop P at 1; Grove J at 14; Hislop J at 33

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW – Appeal against sentence – Crown appeal – whether sentence manifestly inadequate – attempt to possess marketable quantity of heroin – sentencing exercise directed to individual justice – no specific error by sentencing judge - CRIMINAL LAW – s 68A Crimes (Appeal and Review) Act 2001 – ss 68, 79 and 80 Judiciary Act 1903 (Cth) – whether s 68A Crimes (Appeal and Review) Act 2001 picked up by Judiciary Act 1903 (Cth)

LEGISLATION CITED: Australian Constitution s 109
Crimes Act 1914 (Cth) s 16A(1)
Crimes (Appeal and Review) Act 2001 (NSW) s 68A
Criminal Appeal Act 1912 s 5D
Criminal Code 1995 (Commonwealth)
Criminal Code Act 1924(Tas) s 402 (4A)
Judiciary Act 1903 (Cth) ss 68, 79 and 80

CATEGORY: Principal judgment

CASES CITED: El-Ghourani v R [2009] NSWCCA 140
Korgbara v R (2007) 170 A Crim R 568
Milich v R [2008] NSWCCA 148
N v R [2009] NSWCCA 108
Onuorah v R [2009] NSWCCA 238
R v Dang [2004] NSWCCA 265
R v Haidar [2004] NSWCCA 350
R v Okeke [2005] NSWCCA 444
R v Rivadavia (2004) 61 NSWLR 63; R v SC [2008] NSWCCA 29
R v Talbot [2009] TASSC 107
R v Wong (1999) 48 NSWLR 340
Western Australia v The Commonwealth [1995] HCA 47; 183 CLR 373
Weininger v The Queen (2003) 212 CLR 629
The Queen v Olbrich (1999) 199 CLR 270

PARTIES: The Queen (Appellant)
Srebre Todoroski (Respondent)

FILE NUMBER(S): CCA 2009/6191

COUNSEL: Mr P Hastings QC (Appellant)
Dr B Glennon (Respondent)

SOLICITORS: Commonwealth Director of Public Prosecutions (Appellant)
D H Cohen Lawyers (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/11/0293

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

LOWER COURT DATE OF DECISION: 14 August 2009

2009/6191

ALLSOP P
GROVE J
HISLOP J
Friday 30 April 2010

R v TODOROSKI

Judgment

1 ALLSOP P: I have had the advantage of reading the reasons of Grove J. I agree with them, and with the order proposed by his Honour. In these circumstances, it is inappropriate to deal with any Constitutional issue that was put forward on behalf of Mr Todoroski impugning the Crimes (Appeal and Review) Act 2001 (NSW) (the “CAR Act”), s 68A.

2 One group of issues should, however, be mentioned. These are not, strictly speaking, Constitutional issues, though they may be seen to be of a similar character. Mr Todoroski’s conviction was for an offence under a law of the Commonwealth Parliament. The criminal proceeding and the appeal were in the exercise of federal criminal jurisdiction. The argument was put that the CAR Act, s 68A was not “picked up”…

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 Todoroski

Details

AGLC: R v Todoroski [2010] NSWCCA 75
Case: [2010] NSWCCA 75
Decision Date: 30 April 2010

CaseChat Overview and Summary

The appeal arose from the case of R v Todoroski, where the respondent had been convicted of attempting to possess a marketable quantity of heroin. The Crown appealed against the sentence imposed, arguing that it was manifestly inadequate. The matter was heard in the Court of Appeal. The legal issues before the court were whether the sentence was manifestly inadequate, and if the provisions of the Crimes (Appeal and Review) Act 2001 were picked up by the Judiciary Act 1903 (Cth).

The court held that the appeal was not grounded on any specific error by the sentencing judge, but rather on a general dissatisfaction with the sentence. The court noted that the sentencing exercise was directed to individual justice, and that the sentence imposed was within the range of available penalties for the offence. The court also considered the provisions of the Crimes (Appeal and Review) Act 2001 and concluded that they were not picked up by the Judiciary Act 1903 (Cth). The court found that the sentence was not manifestly inadequate, and dismissed the Crown’s appeal. The court did not make any orders as the appeal was dismissed.

Orders