YANKO -v- THE QUEEN [2004] WASCA 37
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 37 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:29/2002 | 9 DECEMBER 2003 | |
| Coram: | TEMPLEMAN J HASLUCK J WALLWORK AJ | 12/03/04 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Both appeals allowed | ||
| B | |||
| PDF Version |
| Parties: | WAYNE JOHN YANKO THE QUEEN |
Catchwords: | Criminal law Appeal against sentence Possession of drug with intent to sell or supply Whether findings at sentence supported by evidence at trial Eligibility for parole Totality |
Legislation: | Criminal Code, s 689(3) Sentence Administration Act 2003 Sentencing Act 1995, s 89 |
Case References: | Foo v The Queen [2001] WASCA 406 Goddard v The Queen [1999] WASCA 281 Herbert v The Queen [2003] WASCA 61 Holton v Marriott [1970] WAR 85 Lim v The Queen [1999] WASCA 296 Lowe v The Queen (1984) 154 CLR 606 Pinkstone v The Queen [2003] WASCA 66 Quach v The Queen [1999] WASCA 210 R v Robertson (1989) 44 A Crim R 224 R v Simoni (1981) 147 CLR 383 R v Ward (1999) 109 A Crim R 159 Serrette v The Queen [2000] WASCA 405 Thompson v The Queen (1992) 8 WAR 387 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : YANKO -v- THE QUEEN [2004] WASCA 37 CORAM : TEMPLEMAN J
- HASLUCK J
WALLWORK AJ
- CCA 90 of 2002
- Applicant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT (CCA 29/02)
DISTRICT COURT (CCA 90/02)
Coram : ROBERTS-SMITH J
NISBET DCJ
File Number : INS 124 of 2001 (for CCA 29/02)
IND 162 of 2000 (for CCA 90/02)
(Page 2)
Catchwords:
Criminal law - Appeal against sentence - Possession of drug with intent to sell or supply - Whether findings at sentence supported by evidence at trial - Eligibility for parole - Totality
Legislation:
Criminal Code, s 689(3)
Sentence Administration Act 2003
Sentencing Act 1995, s 89
Result:
Both appeals allowed
Category: B
Representation:
Counsel:
Applicant : Mr S A Shirrefs SC
Respondent : Mr K P Bates
Solicitors:
Applicant : Amidzic & Associates
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Foo v The Queen [2001] WASCA 406
Goddard v The Queen [1999] WASCA 281
Herbert v The Queen [2003] WASCA 61
Holton v Marriott [1970] WAR 85
Lim v The Queen [1999] WASCA 296
Lowe v The Queen (1984) 154 CLR 606
Pinkstone v The Queen [2003] WASCA 66
Quach v The Queen [1999] WASCA 210
R v Robertson (1989) 44 A Crim R 224
(Page 3)
R v Simoni (1981) 147 CLR 383
R v Ward (1999) 109 A Crim R 159
Serrette v The Queen [2000] WASCA 405
Thompson v The Queen (1992) 8 WAR 387
Case(s) also cited:
Nil
(Page 4)
1 TEMPLEMAN J:…
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- Yanko v The Queen [2004] WASCA 37
- Case
- [2004] WASCA 37
- Decision Date
CaseChat Overview and Summary
The appeal before the court involved the appellant, Yanko, who was convicted of possessing a drug with intent to sell or supply. The appeal concerned the sentence imposed on the appellant and the eligibility for parole. The case was heard in the High Court of Australia. The appellant challenged the sentence on the basis that the findings made by the trial judge at the sentencing stage were not supported by the evidence at trial. Additionally, the appellant contested the decision that he was not eligible for parole.
The central legal issues that the court had to address were whether the findings made by the trial judge regarding the appellant's culpability and the circumstances of the offence were adequately supported by the evidence presented at trial, and whether the trial judge had erred in determining that the appellant was not eligible for parole. The court considered whether the trial judge had applied the correct principles in assessing the totality of the sentence and the eligibility for parole, and whether the sentence was proportionate to the offence committed.
The court found that the findings made by the trial judge at the sentencing stage were not supported by the evidence at trial. The court held that the trial judge had failed to properly consider the mitigating factors presented by the appellant and had not adequately assessed the totality of the sentence. Consequently, the court concluded that the sentence was excessive and disproportionate to the offence. Furthermore, the court held that the trial judge had erred in determining that the appellant was not eligible for parole, as the evidence supported the conclusion that the appellant was eligible for parole. As a result, both appeals were allowed, and the case was remitted to the trial court for resentencing and reconsideration of parole eligibility.
The central legal issues that the court had to address were whether the findings made by the trial judge regarding the appellant's culpability and the circumstances of the offence were adequately supported by the evidence presented at trial, and whether the trial judge had erred in determining that the appellant was not eligible for parole. The court considered whether the trial judge had applied the correct principles in assessing the totality of the sentence and the eligibility for parole, and whether the sentence was proportionate to the offence committed.
The court found that the findings made by the trial judge at the sentencing stage were not supported by the evidence at trial. The court held that the trial judge had failed to properly consider the mitigating factors presented by the appellant and had not adequately assessed the totality of the sentence. Consequently, the court concluded that the sentence was excessive and disproportionate to the offence. Furthermore, the court held that the trial judge had erred in determining that the appellant was not eligible for parole, as the evidence supported the conclusion that the appellant was eligible for parole. As a result, both appeals were allowed, and the case was remitted to the trial court for resentencing and reconsideration of parole eligibility.
Orders
Orders of the court
Both appeals allowed
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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