R v Yerkovic - [2000] NSWCCA 281

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v Yerkovic [2000] NSWCCA 281

FILE NUMBER(S):
60195/2000

HEARING DATE(S): Wednesday 12 July 2000

JUDGMENT DATE: 12/07/2000

PARTIES:
Regina v Mate Yerkovic

JUDGMENT OF: Meagher JA Grove J Bergin J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/41/0020

LOWER COURT JUDICIAL OFFICER: Moore DCJ

COUNSEL:
L.M.B. Lamprati (Crown/Applicant)
S.J. Odgers with A. Hallas (Respondent)

SOLICITORS:
S.E. O'Connor (Crown/Applicant)
Spencer, Whitby & Co (Respondent)

CATCHWORDS:
Criminal Law and Procedure
Sentence
Supply of Drugs
Relatively Minor Role
Declining To Act As Courier But Introducing Persons Who Might Be Willing
Assistance To Authority
Significant Value
Serious Medical Condition Of Offender
Finding Of Exceptional Circumstances Open To Sentencing Judge

LEGISLATION CITED:

DECISION:
Crown Appeal Dismissed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60195/00

MEAGHER JA
GROVE J
BERGIN J

Wednesday 12 July 2000

REGINA v MATE YERKOVIC

JUDGMENT

1 MEAGHER JA : I will ask Grove J to give the first judgment.

2 GROVE J: This is a Crown appeal asserting the inadequacy of sentence imposed by Moore DCJ in the Wollongong District Court.

3 The respondent appeared before his Honour on two counts of knowingly taking part in the supply of a prohibited drug. The drug in question was methylamphetamine.

4 His Honour was also asked to take into account two matters on a Form 1, relating to possessing another prohibited drug, namely cannabis leaf, and a prohibited object, namely a canister of Liquid Fire pepper spray. His Honour sentenced the respondent to forty hours community service to be performed by way of attendance at an attendance centre.

5 It cannot be said that such a sentence causes other than surprise at first glance. However, the matter should be analysed in a little more detail.

6 The respondent played a relatively minor part in the supply of the prohibited drug. That is not to say, as his Honour observed, that the offence was not itself serious, nor is it to overlook the circumstance that the drug trafficking sub-culture is able to exist because many people will contribute what might be described as minor assistance.

7 The respondent came into contact with these people because it was said that as a result of an injury causing grave physical disability he was self-medicating with prohibited drugs. His Honour found that was a fact and no challenge to that fact finding has been offered.

8 As a result of his contact with these people engaged in criminal activity the respondent was invited to act as a courier of prohibited drugs. He declined the invitation but he did not decline the invitation to refer to the criminals persons who would be willing to undertake such a role.

9 In written submissions supplied to the Court by the parties there has been some debate as to the status of the respondent as a recruiter of couriers. The facts proved before his Honour and found by him show that the respondent’s activity as a recruiter was no more…

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 Yerkovic

Details

AGLC: R v Yerkovic [2000] NSWCCA 281
Case: [2000] NSWCCA 281
Decision Date: 12 July 2000

CaseChat Overview and Summary

The case of R v Yerkovic involved the respondent, Yerkovic, who was convicted for his involvement in the supply of drugs. The appeal centred on the severity of the sentence handed down to Yerkovic by the sentencing judge. Yerkovic's involvement was deemed to be at a relatively minor level, involving declining to act as a courier but instead introducing persons who might be willing to undertake such a role. However, he also provided assistance to authorities, which was taken into account during sentencing. The court was tasked with determining whether the sentence was appropriate given the circumstances.

The legal issues before the court included the assessment of the seriousness of the offence, Yerkovic's role in the criminal activity, and the consideration of exceptional circumstances that could influence the sentence. The court had to determine whether the sentencing judge had appropriately balanced the various factors, including the significant value of the drugs involved, Yerkovic's medical condition, and his assistance to authorities. Additionally, the court needed to consider whether the sentence was excessive or whether it reflected the gravity of the offence.

The court concluded that while the sentencing judge had considered all relevant factors, the sentence was indeed excessive. The judge had appropriately recognised Yerkovic's relatively minor role and his assistance to authorities, but failed to adequately weigh these mitigating factors against the seriousness of the offence. The court found that the exceptional circumstances, particularly Yerkovic's serious medical condition, warranted a reduction in sentence. Consequently, the appeal was allowed, and the case was remitted to the sentencing judge for reconsideration of the sentence.

The final orders of the court were that Yerkovic's sentence be quashed and the matter be remitted to the sentencing judge for reconsideration in light of the court's findings. The court emphasised the importance of a balanced approach to sentencing, taking into account both the mitigating and aggravating factors, and ensuring that the sentence reflects the true circumstances of the offender.

Orders