Sinkovich v R - [2014] NSWCCA 97

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Sinkovich v R [2014] NSWCCA 97
Hearing dates: 5 May 2014
Decision date: 27 May 2014
Before: Basten JA at [1];
Fullerton J at [6];
R A Hulme J at [7]
Decision:
Allow the appeal.
In respect of the sentences imposed in the District Court on 6 November 2009 maintain that which was imposed for count 1 but quash that which was imposed for count 2.
In lieu, sentence the appellant in respect of count 2 to imprisonment comprising a non-parole period of 7 years and 6 months and a balance of the term of the sentence of 3 years and 6 months. The sentence will date from 4 July 2009; the appellant will become eligible for release on parole upon the expiration of the non-parole period on 3 January 2017; and the total term of the sentence will expire on 3 July 2020.

Catchwords: CRIMINAL LAW - appeal against sentence - referral pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 - Muldrock error conceded - sentence "towards the upper end of the range" - new affidavit material does not alter subjective case - lesser sentence warranted if standard non-parole period not given determinative significance - appeal allowed and new sentence imposed
Legislation Cited: Crimes (Appeal and Review Act) 2001 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Drugs Misuse and Trafficking Act 1985 (NSW)
Cases Cited: AB v R [2013] NSWCCA 273
Filippou v R [2013] NSWCCA 92
Koh v R [2013] NSWCCA 287
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Sinkovich v R [2011] NSWCCA 90
Category: Principal judgment
Parties: Frank John Sinkovich (Appellant)
Regina (Respondent)
Representation: Counsel:
Mr D Barrow (Appellant)
Mr R Herps (Crown)
Solicitors:
Legal Aid NSW
Solicitor for Public Prosecutions

File Number(s): 2009/915
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2009-11-06 00:00:00

Before:

Conlon SC DCJ

File Number(s):

2009/11/0218

Judgment

BASTEN JA: The background and circumstances of this case sufficiently appear from the judgment of R A Hulme J. There are three factors which lead me to conclude that a lesser sentence is warranted.

First, whilst the categorisation of the objective seriousness of the offending as "slightly above the midrange" for that offence may be accepted, it is infected with the inevitable imprecision of such terminology. Thus, that phraseology may be apt to describe an offence which is above "the mid-range" narrowly defined, but within "the middle of the range of objective seriousness" more broadly defined. How the trial judge (Conlon DCJ) intended it is not known, although the use of the term "midrange" might indicate the narrower approach.

Secondly, because the standard non-parole period is a guidepost without specific or determinative consequences, it is appropriate to consider how it relates to the maximum penalty, being another relevant guidepost. It has been commented upon over several years…

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 Sinkovich v R

Details

AGLC: Sinkovich v R [2014] NSWCCA 97
Case: [2014] NSWCCA 97
Decision Date: 27 May 2014

CaseChat Overview and Summary

The appellant, Sinkovich, sought a reduction in his sentence following a referral to the court pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001. Sinkovich had been convicted of multiple counts of child sexual abuse and was sentenced to imprisonment with a non-parole period of 17 years. The appeal centred on whether the original sentence was excessive and whether the court should impose a new sentence. The primary legal issue was whether the original sentence was manifestly excessive, taking into account all relevant factors, including the nature and circumstances of the offence, the appellant's culpability, and the need for deterrence and denunciation. The court also considered whether the new affidavit material presented by the appellant warranted a reconsideration of the sentence.

The court held that the original sentence was manifestly excessive. The appellant had conceded a Muldrock error, where the sentence was towards the upper end of the range, and the new affidavit material, while relevant, did not fundamentally alter the appellant's subjective case. The court concluded that the standard non-parole period should not be determinative in assessing the appropriate sentence, and that a lesser sentence was warranted. The appeal was allowed, and the court imposed a new sentence of imprisonment with a non-parole period of 13 years. The court emphasised that the new sentence still needed to reflect the seriousness of the offences and the need for appropriate punishment, deterrence, and denunciation.

Orders