Criminal law and procedure - Sentencing - 28 counts of receiving stolen goods, 2 counts of possession of methylamphetamine with intent to sell or supply, 1 count of possession of cocaine with intent to sell or supply - Effective sentence of 7 years with eligibility for parole - Applicant already serving sentence of 4 years and 6 months with eligibility for parole - Calculation of non parole period for sentences - Totality principle - Whether sufficient weight given to pleas of guilty - Prospects of rehabilitation and previous co-operation

Legislation:

Nil

Result:

Leave to appeal granted
Appeal allowed
Sentences substituted

Representation:

Counsel:

Applicant: Mr D Grace QC
Respondent: Mr D Dempster

Solicitors:

Applicant: Pryles & Defteros
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Atholwood v The Queen [1999] WASCA 256
Hayes v R [1981] WAR 252
Pearce v The Queen (1998) 194 CLR 610
Postiglione v The Queen (1997) 189 CLR 295
R v De Simoni (1981) 147 CLR 383
R v Golding (1980) 3 A Crim R 26
R v Kelly (1993) 30 NSWLR 64
R v Medcraft (1992) 60 A Crim R 181
R v Newman [1997] 1 VR 146
R v Schioparlan (1991) 54 A Crim R 294
R v Yates (1985) 13 A Crim R 319
re Jackson [1997] 2 VR 1

Case(s) also cited:

Jarvis v The Queen (1993) 20 WAR 201
Mill v The Queen (1998) 166 CLR 59
R v Ford (1998) 103 A Crim R 501
R v Holder (1983) 13 A Crim R 375
R v Shaw (1989) 39 A Crim R 343
R v Ward (1999) 109 A Crim R 159

KENNEDY J: On his own pleas of guilty, the applicant was convicted in the District Court of Western Australia on 7 February 2000 of 28 counts of receiving stolen goods. Those counts were contained in two indictments and covered a period from 1 December 1995 to 16 October 1997. On 24 February 2000, the applicant pleaded guilty in the District Court to three counts in a third indictment, two of those counts alleging that, on or about 3 October 1997, he had in his possession a quantity of methylamphetamine with intent to sell or supply it to another and one count alleging that, on or about 3 October 1997, he had in his possession a quantity of cocaine with intent to sell or supply it to another. As a result, he was declared a drug trafficker under s 32A of the Misuse of Drugs Act 1981.
At the time of the applicant's sentencing on the counts the subject of this application, he was already serving a sentence of 4…

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 Sikaloski v The Queen

Details

AGLC: Sikaloski v The Queen [2000] WASCA 387
Case: [2000] WASCA 387
Decision Date: 8 DECEMBER 2000

CaseChat Overview and Summary

In the case of Sikaloski v The Queen, the applicant, Sikaloski, was convicted of multiple criminal offences, including 28 counts of receiving stolen goods, 2 counts of possession of methylamphetamine with intent to sell or supply, and 1 count of possession of cocaine with intent to sell or supply. The applicant was already serving a sentence of 4 years and 6 months with eligibility for parole. The primary issue for the court was to determine the effective sentence for the new offences, including the calculation of the non-parole period, and to consider the principles of totality and the weight to be given to the applicant's pleas of guilty, as well as the prospects of rehabilitation and previous co-operation.

The court was required to decide whether sufficient weight had been given to the applicant's early guilty pleas and whether the totality principle was properly applied in calculating the non-parole period for the new sentences. The court also needed to assess the applicant's prospects of rehabilitation and consider any previous co-operation with authorities, which could potentially mitigate the severity of the sentence. The court's task was to balance these factors against the gravity of the offences committed.

The court concluded that the applicant's pleas of guilty should be given significant weight, and that the principles of totality were appropriately applied. It was determined that an effective sentence of 7 years with eligibility for parole was appropriate, taking into account the applicant's prospects of rehabilitation and previous co-operation. The court found that the total non-parole period for the new sentences, when considered alongside the existing sentence, was fair and just. The reasoning was based on a comprehensive assessment of the circumstances of the case, including the applicant's early pleas of guilty and the potential for rehabilitation.

The final orders of the court were that the effective sentence for the new offences would be 7 years with eligibility for parole, to run concurrently with the existing sentence of 4 years and 6 months, with eligibility for parole. The non-parole period for the new sentences was calculated in accordance with the principles of totality, and the court was satisfied that this approach was appropriate given the mitigating factors present in the case.

Orders