Regina v Kipic; Regina v Elias - [2004] NSWCCA 452

CITATION: Regina v Kipic; Regina v Elias [2004] NSWCCA 452 revised - 14/12/2004

HEARING DATE(S): 1 December 2004

JUDGMENT DATE:
10 December 2004

JUDGMENT OF: Tobias JA at 1; Sully J at 2; Hoeben J at 72

DECISION: Sentences quashed and respondents re-sentenced. See paragraph 69 of judgment.

LEGISLATION CITED: Criminal Appeal Act 1912 (NSW)
Drug Misuse & Trafficking Act 1985 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

CASES CITED: Reg v Clark (unreported) NSWCCA, 15 March 1990
Zamagias [2002] NSWCCA 17
Le Cerf (1975) 8 ALR 349 at 351
Thomson and Houlton
Jurisic (1998) 45 NSWLR 209
Wong v The Queen [2001] 207 CLR 584
Trindall [2002] NSWCCA 364
Palu [2002] NSWCCA 381

PARTIES :
Regina v Stephanie Snezana KIPIC
Regina v Roger ELIAS

FILE NUMBER(S): CCA 2004/2128; 2004/2129

COUNSEL: J. Girdham - Crown
M. Paish - Respondent Kipic
L. Rowan - Respondent Elias

SOLICITORS: S. Kavanagh - Crown
S. O'Connor - Respondents

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/0238; 03/21/0299

LOWER COURT
JUDICIAL OFFICER : Nicholson DCJ

- 24 -

2004/2128
2004/2129

TOBIAS JA
SULLY J
HOEBEN J

REGINA v Stephanie Snezana KIPIC

REGINA v Roger ELIAS

Judgment

1 TOBIAS JA: I agree with Sully J.

2 SULLY J: On 4 June 2004 three co-offenders stood for sentence before his Honour Judge Nicholson SC sitting in the District Court at Campbelltown. They were: Roger Elias; Stephanie Snezana Kipic; and David Anthony Culbert. His Honour passed various sentences of imprisonment and made various orders.

3 There are now before this Court Crown appeals brought pursuant to section 5D of the Criminal Appeal Act 1912 (NSW) against what is asserted by the Crown to have been the manifest inadequacy of the sentences passed, and the orders made, in the cases of Mr. Elias and of Miss Kipic.

4 On 4 June 2003 Mr. Elias pleaded guilty before a Local Court Magistrate to three charges each of which alleged a drug-related criminal offence. He was committed thereupon to the District Court for sentence.

5 On 7 November 2003 Mr. Elias was presented at the Parramatta District Court before Judge Nicholson. He was so presented upon an indictment containing three counts. Count 1 charged that Mr. Elias had, for material or financial reward, supplied methylamphetamine, a prohibited drug, on three or more separate occasions during a period of thirty consecutive days. Such an offence contravenes section 25A(1) of the Drug Misuse & Trafficking Act 1985 (NSW); and attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for 20 years. Count 2 charged that Mr. Elias had supplied methylamphetamine, a prohibited drug. Such an offence contravenes section 25(1) of the Drug Misuse & Trafficking Act; and attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for 15 years. Count 3 charged that Mr. Elias had supplied cannabis, a prohibited drug. Such an offence contravenes section 25(1) of the Drug Misuse & Trafficking Act; and attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for 10…

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.

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Details

Case: [2004] NSWCCA 452
Decision Date: 10 December 2004

CaseChat Overview and Summary

In Regina v Kipic; Regina v Elias, the New South Wales Court of Criminal Appeal reviewed the sentences imposed on Stephanie Snezana Kipic and Roger Elias for their involvement in drug trafficking. The Court found the original sentences, which included home detention orders instead of custodial sentences, to be manifestly inadequate and contrary to the principles established in previous cases. The Court noted that the original sentencing judge had made findings of exceptional circumstances but failed to identify what those circumstances were. The Court also found that the use of a home detention order in drug trafficking cases was inconsistent with its previous rulings. The Court quashed the original sentences and re-sentenced the respondents, ordering them to serve their sentences partly by way of periodic detention to ensure a degree of full-time custody, while continuing home detention to maintain monitoring. The Court emphasized that the restructured sentences should not be seen as a precedent for other drug trafficking cases.

Orders