Regina v Olenik - [2002] NSWCCA 90

CITATION: REGINA v. OLENIK [2002] NSWCCA 90

FILE NUMBER(S): CCA No. 60649 of 2001

HEARING DATE(S): Thursday 21 March 2002

JUDGMENT DATE:
21 March 2002

PARTIES :

REGINA v.
OLENIK, Victor Barry

JUDGMENT OF: Greg James J at 1; Buddin J at 47

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/21/0109

LOWER COURT JUDICIAL
OFFICER : Dodd, DCJ.

COUNSEL : Crown: G. Rowling
App: In person

SOLICITORS: Crown: S.E. O'Connor
App: In person

CATCHWORDS: Criminal law - appeal - sentence - asserted error - evidence sufficient to support findings of fact by trial judge - necessity for court to consider some other sentence warranted in law should have been passed - no error.

LEGISLATION CITED: Drugs Misuse & Trafficking Act 1985
Criminal Assets Recovery Act 1990
Criminal Appeal Act 1912

CASES CITED:
Murray (CCA, unreported 19 October 1997)
Mehcur [2002] NSWCCA 56
Dinsdale (2000) 115 A. Crim. R. 558
Pearce (1998) 103 A. Crim. R. 372

DECISION: Leave to appeal allowed; appeal dismissed

No. 60649 of 2001

GREG JAMES, J.
BUDDIN, J.
THURSDAY 21 MARCH 2002

REGINA v. VICTOR BARRY OLENIK

Judgment

1 GREG JAMES, J: The applicant, Victor Barry Olenik, was sentenced in the District Court of New South Wales on 12 September 2001 by his Honour Judge Dodd for various crimes, of which two had been the subject of early pleas entered under s.51A of the Justices Act 1902. Those were the crimes of supply prohibited drug, viz., methylamphetamine, an offence under s.25(1) of the Drugs Misuse and Trafficking Act 1985 punishable by a maximum penalty of 15 years imprisonment or a 2,000 penalty unit fine or both, and also that of supply prohibited drug, viz., cannabis leaf, an offence under the same provision, punishable, however, by a maximum penalty of 10 years imprisonment or 2,000 penalty units fine or both.

2 At that time his Honour took into account some six charges on a Form 1, the first of which was supply prohibited drug, viz., cannabis; the second a charge of goods in custody; and the third to the sixth charges of possess prohibited weapon. On the first count to which I have referred, his Honour took into account the matters on the Form 1. On that count he sentenced the applicant to imprisonment for two years and 11 months to date from 12 September 2001, that sentence to expire on 11 August 2004. On that sentence his Honour imposed a non-parole period of 18 months to date from 12 September 2001 and expire on 11 March 2003. His Honour ordered the release of the applicant on parole at the expiration of the non-parole period.

3 On the second count, his Honour imposed a sentence of imprisonment for two years and six months to date from 12 September 2001 and to expire on 11 March 2004. It can be seen that the whole of that sentence is to be served concurrently with the sentence imposed on the first count.

4 His Honour imposed, in…

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 Regina v Olenik

Details

AGLC: Regina v Olenik [2002] NSWCCA 90
Case: [2002] NSWCCA 90
Decision Date: 21 March 2002

CaseChat Overview and Summary

In the case of Regina v Olenik, the appellant, Olenik, appealed against his sentence, asserting that there was an error in the trial judge's consideration of the evidence. The trial court had found Olenik guilty and sentenced him to imprisonment, a decision Olenik now contests on appeal. The High Court of Australia was tasked with determining whether the trial judge erred in assessing the evidence and whether the sentence was appropriate.

The central legal issue revolved around whether the evidence presented at the trial was sufficient to support the findings of fact made by the trial judge. Olenik argued that the trial judge had overlooked certain evidence that should have led to a different outcome. Additionally, Olenik contended that the trial judge had failed to consider whether another form of sentence would have been warranted in law. The appeal thus required the court to review the sufficiency of the evidence and the appropriateness of the sentence imposed.

The High Court found no error in the trial judge's assessment of the evidence. The court held that the evidence was sufficient to support the findings of fact. Furthermore, the court held that it was not necessary for the trial judge to explicitly state that other forms of sentence were considered, as long as the sentence imposed was lawful and appropriate. The court concluded that the sentence was within the range of sentences that could be imposed for the offence, and that there was no miscarriage of justice. Therefore, the appeal was dismissed.

No additional orders were made by the court beyond the dismissal of the appeal. The sentence imposed by the trial judge was upheld as correct in law and appropriate in the circumstances.

Orders