R v Nikolic

Court of Criminal Appeal (NSW)|2007-04-16|Before: McClellan CJ, Hidden J, Rothman J, Clellan CJ

CITATION: R v Nikolic [2007] NSWCCA 232 This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT OF: McClellan CJ at CL at 1; Hidden J at 2; Rothman J at 28

DECISION: Appeal allowed, sentence passed in the District Court quashed. Re-sentenced to a non-parole period of eight-and-a-half years, commencing on 26 February 2005 and expiring on 25 August 2013, and a balance of term of four years and three months, commencing on 26 August 2013 and expiring on 25 November 2017.

CATCHWORDS: CRIMINAL LAW - Sentence - Crown appeal - knowingly taking part in supply of large commercial quantity of ecstasy - related to Crown appeal in R v Stankovic - whether sentence manifestly inadequate - whether "bottom-up" approach to sentencing appropriate.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

R v Stankovic [2006] NSWCCA 229 CASES CITED: R v Way (2004) 60 NSWLR 168 R v Tobar (2004) 150 A Crim R 104

PARTIES: Regina (applicant) Gojko Nikolic (respondent)

COUNSEL: R Herps (Crown) A Francis (respondent)

SOLICITORS: Solicitor for Public Prosecutions (applicant) Legal Aid Commission (respondent)

IN THE COURT OF CRIMINAL APPEAL 2007/336

McCLELLAN CJ at CL HIDDEN J ROTHMAN J

Judgment 1 McCLELLAN CJ at CL: I agree with Hidden J. 2 HIDDEN J: This is a Crown appeal against a sentence imposed upon the respondent in the District Court for an offence of knowingly taking part in the supply of a large commercial quantity of ecstasy, to which he pleaded guilty. That offence carries a maximum sentence of imprisonment for life and a standard non-parole period of fifteen years. He was sentenced to imprisonment for nine years, dating from 26 February 2005, comprising a non-parole period of six years and a balance of term of 3 years. 3 The sentencing judge had earlier dealt with a co-offender, Nenad Stankovic. The sentence he passed upon that offender was the subject of a successful Crown appeal: R v Stankovic [2006] NSWCCA 229. Judgment was delivered in that appeal before his Honour dealt with the present respondent. It will be necessary to examine the sentence passed by this Court in that case, and the reasons for it.

Facts 4 His Honour had before him an agreed statement of facts, amplified by the respondent's evidence. For present purposes, his Honour's findings can be summarised briefly. 5 In February 2005, the respondent and Mr Stankovic were involved in the production of ecstasy at a house at Dee Why. Their activities came under police surveillance, and on 26 February 2005 police searched the premises and both offenders were arrested. A quantity of ecstasy and equipment for the purpose of its production in tablet form were found. The amount of the drug was almost forty-four kilograms, roughly eighty-eight times the prescribed large commercial quantity (500gm). 6 The respondent was forty-five years old at the time of the offence and is now forty-seven. He has no prior convictions. He was born and raised in Serbia, which is also Mr Stankovic's country of origin. He married in 1987 and there is a son of that union. He was acquainted with his co-offender, Mr Stankovic, before he came to Australia, although he was closer to the brother of Mr Stankovic, Branco Stankovic. 7 He came to this country for business reasons in 1998, returning to Serbia in the following year. In the meantime there were bombings in Belgrade in the course of the notorious civil unrest in that region, and Branco Stankovic protected his son by accommodating him for some months in an area away from the conflict. 8 He met up with Mr Stankovic when he returned to Australia, again for business reasons, in 2004. At the end of that year Mr Stankovic asked for his help to rent a house, saying that he owed money arising from his involvement in a marijuana plantation and that his family in Serbia had been threatened. That is a matter which bore upon the sentencing of Mr Stankovic, and to which I shall refer shortly. The respondent was prepared to help him, feeling obliged to him because of what his brother had done for his son. 9 It is for this reason that the respondent rented the house at Dee Why in early February 2005. His evidence was that he did not then know that it was to be used for drug production and that he did not become aware of this until 17 February, when Mr Stankovic sought his help after he injured his finger on a piece of machinery used to produce ecstasy tablets. His Honour was not satisfied to the contrary and sentenced him on that basis. 10 Having become aware of the enterprise, he helped in the production process, although without the offer of any financial reward. Over the period between 17 and 26 February, the two men were involved in cutting high quality ecstasy, adding cellulose, and re-pilling the drug. Most of this work was done by Mr Stankovic. His Honour found that the respondent, in addition to participating to some extent in the production process, assisted in the collection and delivery of items of production and ran messages for Mr Stankovic. 11 His Honour characterised the respondent's involvement in this way: I have concluded on the evidence and on the basis of agreed facts, firstly, that Nikolic was an essential member of the joint enterprise of manufacturing drugs at Dee Why. He was not on the fringes of this activity. He was at the centre of it, at least from 17 February until it was exposed later that month. ….. I am persuaded on the evidence that his role was somewhat different to that of his co-offender, Stankovic. He was less involved, and less active. 12 His Honour sentenced the respondent and Mr Stankovic upon the basis that neither of them was the mastermind of the enterprise. He had sentenced Mr Stankovic on the footing that he was "a factory worker or labourer", although "an essential part of the joint enterprise". This Court accepted that finding when dealing with the Crown appeal. His Honour, of course, had regard to the judgment in that appeal when dealing with the respondent. It is necessary, then, to examine the basis upon which this Court sentenced Mr Stankovic.

Stankovic 13 Mr Stankovic had been committed to the District Court for sentence on a charge of supplying a large commercial quantity of ecstasy, arising from the enterprise in which he was involved with the respondent. He also asked the sentencing judge to take into account several further drug related offences on a Form 1, including quite a serious offence of cultivating cannabis plants. It seems that it was in association with that offence that he incurred the debt which led to the threats to his family which he described to the respondent. His Honour accepted that it was this which led to his being coerced by another man into the production of the ecstasy and found that, for that reason, his criminality was significantly mitigated. He also had no previous convictions. 14 His Honour determined a starting point of sentence, taking that measure of duress into account. He then discounted that notional sentence by 35%, comprising 20% for the early plea of guilty and a further 15% for certain other material favourable to Mr Stankovic disclosed in a sealed exhibit. On the Crown appeal, this Court held that his Honour's starting point was too low, given the gravity of the principal offence and the fact that matters on a Form 1, one of them a serious offence, had to be taken into account. Grove J, with whom Giles JA and I agreed, found that the principal offence should be placed "at least in the middle of the range of objective seriousness for this offence": [19]. Moreover, Mr Stankovic had committed that offence while on bail in respect of the other offences taken into account on the Form 1. 15 While exercising the restraint with which this Court approaches re-sentence after a successful Crown appeal, Grove J determined that the appropriate starting point for the sentence of Mr Stankovic was imprisonment for eighteen years. In so doing, his Honour accepted that Mr Stankovic was entitled to the measure of leniency for duress which the sentencing judge had afforded him. No issue was taken with the combined discount of 35% for the plea of guilty and the other material, and it was accepted Mr Stankovic was entitled to a finding of special circumstances. In the result the Court substituted a sentence of imprisonment for eleven years and eight months, comprising a non-parole of eight years and nine months and a balance of term of two years and eleven months.

The respondent 16 In his remarks on sentence, the sentencing judge noted the features which distinguished the respondent's case from that of Mr Stankovic. In the light of his findings about the respondent's role in the offence, his Honour assessed his objective criminality to be "below midrange, but certainly not towards the bottom of the range". He discounted the respondent's sentence by 15% for the plea of guilty, which was relatively late, and the respondent could not claim the additional measure of leniency which had earned Mr Stankovic a further discount of 15%. 17 Nor could the respondent seek leniency because of duress, although his involvement was linked to Mr Stankovic's predicament and arose from his sense of obligation to his co-offender's family. On the other hand, unlike Mr Stankovic, there is no evidence that he was to receive any financial advantage. Moreover, there were no Form 1 matters to be taken into account and he was not subject to conditional liberty at the time of the offence. 18 His Honour determined a non-parole period of eight years as a starting point. In doing so, he had regard to the respondent's lack of any criminal record and his expression of remorse, and found that he was unlikely to re-offend. He found special circumstances. Discounting the eight years by 15% led to a term of six years and nine months. His Honour noted that the application to that term of the normal statutory proportion between sentence and non-parole period produced a sentence of nine years. In the light of his finding of special circumstances, his Honour reduced the non-parole period to six years and pronounced sentence accordingly.

The appeal 19 Before turning to the Crown's contention in the appeal, I feel I should comment upon the manner in which his Honour arrived at the sentence which he passed. It is clear that his starting point was the non-parole period, that it was that period to which the specified reduction for the plea of guilty was applied, and that it was only then that the sentence was arrived at by the application of the proportion specified in s 44(2) of the Crimes (Sentencing Procedure) Act. With respect to his Honour, the proper approach was that adopted by Grove J in Stankovic, that is, to determine as a starting point the appropriate sentence and to apply to it the specified discount for the plea of guilty. It is in relation to the resultant sentence that the non-parole period should have been determined. 20 Section 44(1) of the Crimes (Sentencing Procedure) Act prescribes the procedure by which a sentence is passed, requiring a court to first set the non-parole period, but that procedure must not be allowed to dominate the process of reasoning by which a sentence is arrived at. To do so carries the danger that the court will lose sight of the primacy of the "head" sentence. Of course, the determination of the appropriate sentence will be influenced by a standard non-parole period, if one is prescribed for the offence in question, in the manner elucidated by this Court in R v Way (2004) 60 NSWLR 168. However, as Simpson J observed in R v Tobar (2004) 150 A Crim R 104 at [38], speaking of the approach to sentence in all cases, although s44 requires the non-parole period to be pronounced first, it does not require "that that term be the first determined". 21 Approaching the present case in that way, if his Honour had arrived at a sentence of nine years after a discount of 15% for the plea of guilty, the starting point would have been a sentence of a few months short of eleven years. The submission of the Crown prosecutor in this Court, as refined in oral argument, was that that notional starting point was far too low, resulting in a sentence which is manifestly inadequate. He referred to Grove J's starting point of eighteen years in Mr Stankovic's case, noting that that was arrived at after the exercise of restraint appropriate in a Crown appeal. 22 He argued that his Honour's findings about the roles of the two men in the offence did not warrant a conclusion that the respondent's culpability was markedly less than that of Mr Stankovic and, in particular, that his Honour gave undue weight to the evidence that the respondent's participation in the offence was the result of misplaced loyalty. While he acknowledged that the respondent's role did not have "quite the same objective gravity" as that of Mr Stankovic, he submitted that the difference in starting point of sentence could not be justified. 23 Counsel for the respondent, Ms Francis, argued that it was open to his Honour to find a significant distinction between the criminality of the respondent and that of Mr Stankovic. She relied upon the fact that Mr Stankovic had been on conditional liberty and had had several other offences, one of them serious, taken into account. She submitted that the sentence, while undoubtedly lenient, was within the bounds of his Honour's discretion. 24 We received certain additional material on affidavit, from which it appears that the respondent's experience of custody has been difficult, particularly because of his separation from his family in Serbia. Apart from the son to whom I have referred, he has two other children in that country. His relationship with the mother of those children has ended and he has a new partner in this country, who continues to support him. Notwithstanding these difficulties, he has been undertaking educational courses in prison. Ms Francis relied upon this evidence as material going to our residual discretion not to intervene and, if necessary, on re-sentence. 25 I am satisfied that this Court must intervene. The sentence of the respondent cannot stand in the light of the Court's approach in Stankovic. As I have said, Grove J's starting point for Mr Stankovic was eighteen years and his Honour's notional starting point for the respondent was a little under eleven years. Making all due allowance for the respondent's lesser role in the offence, and the fact that Mr Stankovic was on conditional liberty and had Form 1 matters taken into account, a difference of the order of seven years cannot be justified. It appears to me, with respect, that it was his Honour's "bottom up" approach to the sentencing exercise which led him into error. 26 In re-sentencing, I would accept his Honour's characterisation of the respondent's objective criminality, and I would adopt the 15% discount for the plea of guilty and the finding of special circumstances. It is necessary to exercise restraint because this is a Crown appeal, while recognising that a measure of restraint had been exercised in Stankovic. In my view, the appropriate starting point for the sentence of the respondent is imprisonment for fifteen years. A reduction of that term by 15% leads to a sentence of twelve years and nine months. I would specify a non-parole period of eight-and-a-half years. 27 Accordingly, I would allow the appeal and quash the sentence passed in the District Court. I would sentence the respondent to a non-parole period of eight-and-a-half years, commencing on 26 February 2005 and expiring on 25 August 2013, and a balance of term of four years and three months, commencing on 26 August 2013 and expiring on 25 November 2017. 28 ROTHMAN J: I agree with Hidden J.

21/08/2007 - Spelling of respondent's name in title on judgment amended. - Paragraph(s) 0

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