Sikaloski v The Queen - [2000] WASCA 63

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: SIKALOSKI -v- THE QUEEN [2000] WASCA 63

CORAM: WALLWORK J
MURRAY J
SCOTT J

HEARD: 3 FEBRUARY 2000

DELIVERED : 14 MARCH 2000

FILE NO/S: CCA 140 of 1999

BETWEEN: MIKE SIKALOSKI
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Sentencing - Possession of amphetamine with intent to sell or supply - Failure of sentencing Judge to specify discount to be given for applicant's co-operation with police - Public interest - Principle in R v Cartwright - Encouraging offenders to bring illegal activity to the attention of authorities - Applicant acting for own forensic advantage - Allegations of police misconduct

Legislation:

Nil

Result:

Leave to appeal granted
Appeal against sentence allowed

Representation:

Counsel:

Applicant: Mr S D Hall
Respondent: Mr M Mischin

Solicitors:

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

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

Attwell v The Queen (1990) 1 WAR 540
Hayes v The Queen [1981] WAR 252
R v Cartwright (1989) 17 NSWLR 243
R v Golding (1980) 24 SASR 161
Salamen v R (1991) 55 A Crim R 384

Case(s) also cited:

Bellissimo v R (1996) 84 A Crim R 465
Darwell (1997) 94 A Crim R 35
Gallagher v R (1991) 53 A Crim R 248
Kim Long Quach v R [1999] WASCA 210
R v Dao, unreported; CCA SCt of WA; Library No 980619; 29 October 1998

WALLWORK J: I agree with the reasons for judgment of Scott J and to the order proposed by his Honour.
MURRAY J: I respectfully agree with Scott J that for the reasons he gives, leave should be granted in this case and the appeal should be allowed. I would concur in his Honour's view that the sentence imposed with respect to the offence of possession of amphetamine with intent to sell or supply it to another should be reduced from a term of 6 years imprisonment to one of 4‑1/2 years.
It is true, I think, as the respondent argued, that the applicant was presented with a fortuitous opportunity to obtain some support for the proposition that the investigating police had stolen money and a photograph from him. There is no doubt that he then sought to use that information to his forensic advantage during his trial, but it is also clear that he did co‑operate with the police investigation of the allegation of theft made against the investigating police officers. That co‑operation was asserted to be of value during the course of that investigation and, as Scott J has pointed out, that assertion was expressly not contested by the respondent. In those circumstances I think it cannot now be argued that the information in some way lacked cogency or was not of value. A discount of some substance from an otherwise proportionate sentence was required.
It is not to the point I think that, as the respondent argued, the applicant did not provide information…

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 63
Case: [2000] WASCA 63
Decision Date: 14 MARCH 2000

CaseChat Overview and Summary

In the case of Sikaloski v The Queen, the appellant, Sikaloski, was convicted of possession of amphetamine with intent to sell or supply. The dispute centred around the sentencing of the appellant and specifically whether the sentencing judge failed to appropriately account for the discount to be given for the appellant's co-operation with the police. The High Court of Australia was the final court to hear the appeal against sentence.

The primary legal issue the Court had to determine was whether the sentencing judge erred by not specifying the discount to be given for the appellant's co-operation with the police. The Court needed to consider the principles established in R v Cartwright, which set out the framework for considering a discount for co-operation. Additionally, the Court had to assess the extent to which the appellant's co-operation was genuine and not solely for his own forensic advantage, as well as the public interest in encouraging offenders to bring illegal activity to the attention of authorities.

The Court found that the sentencing judge did not adequately specify the discount for the appellant's co-operation, which was an error. The Court acknowledged the importance of the principle in R v Cartwright, which recognises the public interest in offenders cooperating with law enforcement. However, the Court also noted that the appellant's co-operation was not entirely selfless, as he acted partly for his own forensic advantage. Despite this, the Court emphasised the importance of considering the overall public interest in encouraging offenders to report illegal activity. As a result, the Court ordered a re-sentencing hearing to appropriately account for the discount for co-operation.

Orders