Regina v Pejovski - [2001] NSWCCA 182

CITATION: REGINA v. PEJOVSKI [2001] NSWCCA 182

FILE NUMBER(S): CCA No. 60811 of 2000

HEARING DATE(S): Friday 11 May 2001

JUDGMENT DATE:
11 May 2001

PARTIES :

REGINA v.
PEJOVSKI, Cane

JUDGMENT OF: Hodgson JA at 28; Greg James J at 1; Adams J at 29

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0308

LOWER COURT JUDICIAL
OFFICER : Luland, DCJ.

COUNSEL : Crown: D.G. Staehli
App: S.J. Odgers, SC.

SOLICITORS: Crown: Commonwealth Director of Public Prosecutions
App: Warren F. Ball & Co.

CATCHWORDS: Criminal law - appeal against sentence - drug offence - prior good character - same sentence as passed on co-offenders - asserted entitlement to disparity because of difference in previous character - previous good character particularly relevant to prospects of rehabilitation - particular impact on non-parole period - appeal upheld but only to reduce non-parole period.

LEGISLATION CITED: Customs Act 1901
Crimes Act 1914 (Cth)

CASES CITED:
Wong & Leung (1999) 108 A. Crim. R. 531
Ryan [2001] HCA 21

DECISION: Leave to appeal granted; appeal upheld in relation to the specification of the non-parole period. The non-parole period is now specified as a period of three and a half years commencing 14 July 2000 and expiring 13 January 2004.

IN THE COURT OF

CRIMINAL APPEAL

No. 60811 of 2000

CORAM: HODGSON, JA.

FRIDAY 11 MAY 2001

REGINA v. CANE PEJOVSKI

JUDGMENT

1 GREG JAMES, J: The applicant for leave to appeal against sentence was convicted, following his trial in the District Court of New South Wales, on one count of attempting to obtain possession of prohibited imports, an offence under the Customs Act 1901, s.233B(1)(c). He was sentenced to six years imprisonment with a non-parole period of four years, the sentence and non-parole period to date from 14 July 2000.

2 The short circumstances of the offence were recited by the learned sentencing judge in his remarks on sentence. The applicant had attempted to obtain possession of a prohibited drug, namely methylene dioxymethamphetamine, commonly known as ecstasy, in an amount not less than the trafficable quantity. This drug had been imported into Australia in contravention of the Customs Act 1901. The maximum penalty for the offence is 25 years imprisonment.

3 On 7 December 1997 customs officers detected the drugs, which had a relevant pure weight of 214.4 grams, in a package addressed to Beck Architectural Company, 73 Vaumans Road, Peakhurst. The package had been sent by a person named Vlado in Belgium.

4 There was no such road in Peakhurst. A person phoned Australia Post from Belgium, asking about the package, and was told that it had been incorrectly addressed.

5 Later, a phone call was made to Australia Post, saying that the correct address was 73 Baumans Road, Peakhurst. That was the prisoner's address. He was, at the time, engaged in the process of doing extensive renovations to his home.

6 A controlled delivery was attempted by Australian Federal Police. The prisoner was not 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 Pejovski

Details

AGLC: Regina v Pejovski [2001] NSWCCA 182
Case: [2001] NSWCCA 182
Decision Date: 11 May 2001

CaseChat Overview and Summary

In Regina v Pejovski, the defendant appealed against the sentence imposed following his conviction for drug trafficking offences. The case was heard in the High Court of Australia, which was tasked with determining whether the sentence was appropriate given the defendant's previous good character and the circumstances of the case. The central issue before the court was whether the defendant's prior good character warranted a different sentence from that imposed on his co-offenders, particularly in relation to the non-parole period. The court had to consider the relevance of the defendant's previous good character to his prospects of rehabilitation and the proportionality of the sentence imposed.

The court acknowledged that while the defendant's prior good character was relevant to his prospects of rehabilitation, it did not necessarily justify a significantly different sentence from that of his co-offenders. However, the court recognised that the defendant's good character could have a particular impact on the non-parole period. The court held that the trial judge had erred in not adequately considering the defendant's previous good character when determining the non-parole period. The court concluded that the appeal should be upheld, and the sentence should be reduced to reflect the defendant's prior good character.

The High Court upheld the defendant's appeal, reducing the non-parole period to reflect his prior good character. The court emphasised that while the defendant's good character was a relevant factor, it did not warrant a significant disparity in sentence from that of his co-offenders. The court's decision highlighted the importance of considering the individual circumstances of each offender, including their previous good character, when determining an appropriate sentence. The final orders of the court reduced the non-parole period for the defendant, reflecting his prior good character and prospects of rehabilitation.

Orders