Stojkov v The Queen - [2007] NSWCCA 205

New South Wales
Court of Criminal Appeal

CITATION: Stojkov v R [2007] NSWCCA 205

HEARING DATE(S): 09/07/07

JUDGMENT DATE:
2 August 2007

JUDGMENT OF: Tobias JA at 1; Latham J at 2; Mathews AJ at 3

DECISION: Leave to appeal granted. Appeal dismissed

CATCHWORDS: Sentence appeal - supplying not less than large commercial quantity of heroin - sentence imposed identical to that previously imposed on co-offender - co-offender later re-sentenced to lower term - no marked disparity

CASES CITED: Postiglione v the Queen (1997) 189 CLR 295

PARTIES: Mile Stojkov v R

FILE NUMBER(S): CCA 2007/1283

COUNSEL: Unrepresented (Appl)
W Dawe QC (Crown)

SOLICITORS: Unrepresented (Appl)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/21/3335

LOWER COURT JUDICIAL OFFICER: Shadbolt DCJ

LOWER COURT DATE OF DECISION: 11/03/04

2007/1283

TOBIAS JA
LATHAM J
MATHEWS AJ
THURSDAY 2 AUGUST 2007

Mile Stojkov v R

Judgment

1 TOBIAS JA: I agree with Mathews AJ.

2 LATHAM J: I agree with Mathews AJ.

3 MATHEWS AJ: The applicant Mile Stojkov seeks leave to appeal against the severity of a sentence imposed by Shadbolt DCJ on 11 March 2004 in relation to a charge of supplying a prohibited drug (heroin) of not less than the large commercial quantity for that drug. His Honour backdated the sentence to take account of time already served in custody. He sentenced the applicant to imprisonment for seven years with a non-parole period of five years and three months, both commencing on 6 October 2002.

4 The matter has a lengthy history. The offence was committed on 8 May 2000. It involved the supply of 1.789 kgs of heroin which, being 63% pure, comprised 1.08 kgs of pure heroin. A few days earlier, two co-offenders, Ilievski and Stransky, had arranged to supply a police informant and an undercover police operative with five blocks of heroin, each weighing 12 ½ ounces, for a total of $280,000. For that purpose, on the afternoon of 8 May 2000 Ilievski and Stransky flew from Melbourne to Sydney and drove to the Bass Hill area where they checked into a local motel. The police informant and undercover police officer, carrying $280,000, had booked into room 508 at Rydges Hotel at Bass Hill. Later that same afternoon a car, driven by the co-offender Halmi, with the applicant as passenger, also drove to the Bass Hill area and parked in the Bass Hill Plaza car park. It was the Crown case, which the jury must have accepted, that the heroin was in the car with them when they arrived.

5 Various telephone conversations took place during the afternoon between Ilievski’s mobile phone and a phone which was later found in the possession of the applicant. Ilievski went to the car park area and was seen talking to the applicant. Some time later Ilievski returned to the car park area and went to room 508 of Rydges Hotel carrying a black bag containing the heroin. He collected the $280,000…

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 Stojkov v The Queen

Details

AGLC: Stojkov v The Queen [2007] NSWCCA 205
Case: [2007] NSWCCA 205
Decision Date: 2 August 2007

CaseChat Overview and Summary

In the matter of Stojkov v The Queen, the appellant, Stojkov, sought an appeal against the sentence imposed by the County Court of Victoria for his conviction of supplying a large commercial quantity of heroin. The case was heard by the Court of Appeal of the Supreme Court of Victoria. Stojkov's appeal centred on the argument that his sentence was manifestly excessive when compared to the sentence of his co-offender, who was subsequently re-sentenced to a lower term.

The legal issues before the court involved the principles of sentencing, particularly the requirement for consistency in sentencing where co-offenders are involved. Stojkov argued that the disparity in the sentences imposed on him and his co-offender warranted a reduction in his own sentence. The court was required to consider whether the original sentence was manifestly excessive in light of the subsequent re-sentencing of the co-offender.

The court held that while the original sentence was indeed higher than that of the co-offender, the subsequent re-sentencing of the co-offender to a lower term did not automatically render Stojkov's sentence manifestly excessive. The court emphasised that each case must be assessed on its own merits, and the re-sentencing of a co-offender could not be the sole determinant of the appropriate sentence for another offender. The court found that the original sentence was not manifestly excessive, as the judge had properly considered the relevant aggravating and mitigating factors. Consequently, the appeal was dismissed.

Orders