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 90Category: 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…
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- AGLC
- Sinkovich v R [2014] NSWCCA 97
- Case
- [2014] NSWCCA 97
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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