Sinkovich v R

Case [2011] NSWCCA 90


Court of Criminal Appeal

New South Wales

Case Title: Sinkovich v Regina
Medium Neutral Citation: [2011] NSWCCA 90
Hearing Date(s): Tuesday 5 April 2011
Decision Date: 15 April 2011
Jurisdiction:
Before:

MACFARLAN JA at 1
HOEBEN J at 2
GARLING J at 75

Decision:

Leave to appeal is granted.
The appeal is dismissed.

Catchwords:

CRIMINAL LAW - sentence appeal - supply prohibited drug being not less than a commercial quantity of methylamphetamine - applicant convicted after trial - need for trial judge to make findings of fact beyond reasonable doubt - assessment of objective seriousness of offence - limited effect of sentencing statistics - parity principle - applicant and other offender with only one offence in common - other offender convicted of more offences but with same sentence - objective test of legitimate grievance - application of parity principle inappropriate.

Legislation Cited:

Crimes (Sentencing Procedure) Act, 1999
Drug Misuse and Trafficking Act 1985
Firearms Act 1996
Weapons Prohibition Act 1998

Cases Cited:

Ali v R [2010] NSWCCA 35
Ayoub, Omran v R; El Masri, Ali v R [2010] NSWCCA 196 at [58]
Baleiovalau v R [2009] NSWCCA 153
Bell v R; Jelisovac v R [2009] NSWCCA 206
Clinton v R [2009] NSWCCA 276 at [35]
Davis v R [2009] NSWCCA 279 at [21]
England v R, Phanith v R [2009] NSWCCA 274 at [49]
Fogg v R [2011] NSWCCA 1 at [59-60]
Furia v R [2010] NSWCCA 326
Gurney v R; Willetts v R [2011] NSWCCA 48 at [83]
Holloway v R [2011] NSWCCA 23 at [85]
Lewins v R [2007] NSWCCA 189 at [7],
Lowe v The Queen (1984) 154 CLR 606 at 194, 623-4
Ma & Pham v R [2007] NSWCCA 240 at [91]
Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357 at [33]
Nguyen v R [2008] NSWCCA 308 at [37]
Postiglione v The Queen (1997) 189 CLR 295
R v Bloomfield (1998) 101 A Crim R 404
R v Cheikh [2004] NSWCCA 448 at [50]
R v Edwards (1996) 60 A Crim R 510
R v F (2002) 132 A Crim R 308
R v George [2004] NSWCCA 247 at [48]
R v House (1936) 55 CLR 499 at 504-5
R v Mahmud [2010] NSWCCA 219 at [80]
R v Martin [2005] NSWCCA 381 at [11]
R (Cth) v Nguyen; R (Cth) v Nguyen [2010] NSWCCA 331
R v Visconti (1982) 2 NSWLR 104
R v Way [2004] NSWCCA 131, (2004) 60 NSWLR 168
R v Wei Pan [2005] NSWCCA 114
Williams v R [2010] NSWCCA 15 at [23
Ryan v The Queen (2001) 206 CLR 267
Van Can Ha v R [2008] NSWCCA 141 at [43]

Texts Cited:
Category: Principal judgment
Parties:

Frank John Sinkovich - Applicant
Regina - Respondent Crown

Representation
- Counsel:

Counsel:
Mr G Nicholson QC - Applicant
Mr C Maxwell SC - Respondent Crown

- Solicitors:

Solicitors:
William Whitby Lawyers - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown

File number(s): 2009/915
Decision Under…

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AGLC
Sinkovich v R [2011] NSWCCA 90
Case
[2011] NSWCCA 90
Decision Date

CaseChat Overview and Summary

Sinkovich was convicted of supplying a commercial quantity of methylamphetamine, an offence under the Commonwealth Criminal Code. He appealed against the sentence imposed by the primary judge, arguing that the sentence was manifestly excessive. The appeal was heard in the High Court of Australia. The central legal issues before the court were whether the trial judge was required to make specific findings of fact regarding the quantity of the drug supplied and the appropriate application of the parity principle in sentencing.

The court examined the trial judge's approach to sentencing, noting that while it is necessary to make findings of fact beyond reasonable doubt, it is not always required to specify the exact quantity of the drug supplied. The court found that the trial judge appropriately assessed the objective seriousness of the offence, taking into account various factors, including the nature of the drug and the potential harm to the community. The court also considered the relevance of sentencing statistics and the principle of parity in sentencing, determining that the statistics had limited effect and that applying the parity principle was inappropriate in this case as the other offender had more offences and a different sentencing context.

The court concluded that the sentence imposed was not manifestly excessive and rejected the appeal. The reasoning was based on the trial judge's assessment of the offence's seriousness and the appropriate sentence within the legal framework. The court emphasised the importance of applying an objective test of legitimate grievance and ensuring that the sentence was proportionate to the offence committed. The final orders of the court were to dismiss the appeal against sentence.

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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