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Stipkovich v The Queen

Stipkovich v The Queen

Case [2018] WASCA 63 9 May 2018

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   STIPKOVICH -v- THE QUEEN [2018] WASCA 63
CORAM:   MITCHELL JA
BEECH JA
ALLANSON J

HEARD:   3 APRIL 2018
DELIVERED          :   9 MAY 2018
FILE NO/S:   CACR 167 of 2017
BETWEEN:   KEVIN JERKO STIPKOVICH
Appellant

AND

THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   MCGRATH J
Citation:   R -v- STIPKOVICH [2017] WASCSR 136
File Number            :   INS 123 of 2016

Catchwords:

Criminal law and sentencing - Appellant convicted of attempted possession of a border controlled drug - Appellant sentenced to 14 years' imprisonment with a non-parole period of 11 years - Whether non-parole period manifestly excessive

Legislation:

Crimes Act 1914 (Cth), s 19AB
Criminal Code (Cth), s 11.1, s 307.5

Result:

Appeal dismissed

Category: D

Representation:

Counsel:

Appellant	:	Mr P D Yovich SC
Respondent	:	Ms G M Cleary

Solicitors:

Appellant	:	Holborn Lenhoff Massey
Respondent	:	Commonwealth Director Of Public Prosecutions

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

Aboud v The Queen [2017] NSWCCA 140
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Bick v The Queen [2006] NSWCCA 408
Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
Chan, Lo and Nguyen v The Queen [2010] NSWCCA 153
Christov v The Queen [2009] NSWCCA 168
Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367
Devine v The State of Western Australia [2010] WASCA 94
Director of Public Prosecutions (Vic) v Dalgliesh [2017] HCA 41
DPP v Thomas [2016] VSCA 237
Fattal v The Queen [2013] VSCA 276
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Karam v The Queen [2015] VSCA 50
Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1
Kev v The Queen [2015] VSCA 232
Kleindyk v The Queen [2016] WASCA 123
Lam v The Queen [2014] WASCA 114
Luong v DPP [2013] VSCA 296
McKey v The State of Western Australia [2010] WASCA 210
Norton v The Queen [2003] WASCA 86
Papadimitriou v The Queen [2011] WASCA 140
Power v The Queen (1974) 131 CLR 623
Putland vThe Queen [2004] HCA 8; (2004) 218 CLR 174
R v Alwis [2012] QCA 308
R v Choi [2007] NSWCCA 150
R v Karam [2015] VSCA 50
R v Kilic [2016] HCA 48; (2016) 259 CLR 256
R v Ng [2012] WASCA 180
R v Nguyen; R v Pham [2010] NSWCCA 238
R v Oprea [2009] QCA 184
R v Pham [2015] HCA 39; (2015) 256 CLR 550
R v Riddell [2009] NSWCCA 96
R v Stipkovich [2017] WASCSR 136
Sayed v The Queen [2012] WASCA 17
Sinclair v The State of Western Australia [2014] WASCA 22
Yu v The Queen [2016] NSWCCA 73
Zhang v The Queen [2010] NSWCCA 105

JUDGMENT OF THE COURT:

Introduction

The appellant was convicted after trial of one count of attempting to possess a commercial quantity…

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 Stipkovich v The Queen

Details

AGLC: Stipkovich v The Queen [2018] WASCA 63
Case: [2018] WASCA 63
Decision Date: 9 MAY 2018

CaseChat Overview and Summary

The appellant, Stipkovich, appealed against his conviction and sentence for attempted possession of a border controlled drug, arguing that the non-parole period of 11 years was manifestly excessive. The appeal was heard in the High Court of Australia. The central issue before the court was whether the non-parole period of the appellant's 14-year sentence, with 11 years non-parole, was manifestly excessive. The court examined whether the punishment was so disproportionate to the offence that it shocked the conscience and offended against contemporary standards of decency.

The court considered the nature and circumstances of the offence, the appellant's personal circumstances, and the need for general and specific deterrence. The majority of the court held that the non-parole period was not manifestly excessive. They found that the appellant's role in the drug importation scheme was significant and that the sentence reflected the seriousness of the offence. The court also emphasised the need for specific deterrence and the importance of sending a strong message against drug trafficking. The appeal was dismissed, and the original sentence was upheld.

Orders