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10
Court of Criminal Appeal 1 August 2006

Regina v Stankovic

[2006] NSWCCA 229

Drugs
CRIMINAL LAW AND PROCEDURE SENTENCE LARGE COMMERCIAL QUANTITY MDMA UNSUPERVISED CROWN APPEAL MANIFEST INADEQUACY DEMONSTRATED

Citation: Regina v Stankovic [2006] NSWCCA 229
Court: New South Wales Court of Criminal Appeal
Date: 1 August 2006
Judge(s): Giles JA, Grove J, Hidden J

Background

The respondent, a Serbian national who had overstayed a visitor's visa, pleaded guilty in the District Court to supplying a large commercial quantity of MDMA (ecstasy). Police executed a warrant at a Dee Why premises in February 2005 and seized just under 44 kilograms of manufactured MDMA, nearly 88 times the statutory threshold for a "large commercial quantity." The respondent had operated as a labourer in the illicit drug factory, working unsupervised on a pill press during the manufacturing process.

The respondent had a prior involvement in a separate cannabis cultivation operation at a property near Wollongong. That earlier activity, along with possession offences and possession of unlawfully obtained goods, was taken into account under a Form 1 (a procedure where an offender acknowledges additional offences, which the sentencing court considers but does not impose separate penalties for). The sentencing judge, Geraghty DCJ, accepted the respondent's claim that he participated in the MDMA operation under duress, having returned from hiding after receiving threats directed at his former partner and children in Serbia.

Geraghty DCJ imposed a total sentence of seven years nine months, comprising a non-parole period of five years two months. The Crown appealed, contending the sentence was manifestly inadequate given the gravity of the offending.

  • Whether the original sentence of seven years nine months was manifestly inadequate for an offence involving a large commercial quantity of MDMA, with a maximum penalty of life imprisonment and a standard non-parole period of 15 years.
  • Whether the sentencing judge gave sufficient weight to the objective seriousness of the primary offence, the Form 1 matters, and the respondent's role, even accounting for the accepted duress.
  • Whether the combined 35 percent discount applied for the guilty plea and a sealed matter (Exhibit F) was appropriate to carry through on resentencing.

Decision

The Court of Criminal Appeal unanimously allowed the Crown appeal, finding the original sentence manifestly inadequate. Grove J (with whom Giles JA and Hidden J agreed) identified the starting point of 12 years used by Geraghty DCJ as insufficient, given the extraordinary scale of the MDMA operation, the respondent's unsupervised role in the factory, and the very serious Form 1 matters including the earlier large-scale cannabis cultivation.

Grove J acknowledged the accepted duress as a genuine mitigating factor of real significance, noting it was "unusual and troubling" to a degree that made the sentencing exercise difficult. However, the mitigating effect of duress, even when given full weight alongside the guilty plea and the sealed Exhibit F matters, could not bring the sentence to the level imposed by the District Court.

The Court assessed an appropriate starting point of 18 years imprisonment before discounts. Grove J retained the 35 percent total discount that had been applied below, noting it had been agreed by counsel at first instance and was not challenged on appeal. Applying that discount produced an effective sentence of approximately 11 years eight months, structured in line with the statutory non-parole period formula.

Hidden J agreed with Grove J's reasoning, acknowledging the case was unusual and the measure of duress deserved real weight, but concluded that the sentence as originally imposed fell below the range that could be justified.

Orders Made

  • Crown appeal against sentence allowed.
  • Sentence imposed in the District Court quashed.
  • The respondent resentenced to imprisonment comprising a non-parole period of eight years nine months commencing 26 February 2005 and expiring 25 November 2013, with a balance term of two years eleven months commencing 26 November 2013.
  • The earliest date of eligibility for release to parole specified as 25 November 2013.

Key Takeaways

  • A sentence for supplying a large commercial quantity of MDMA must reflect the full objective gravity of the offence, including the scale of the operation, the offender's role, and any serious Form 1 matters, even where duress is accepted as a genuine mitigating factor.
  • Accepted duress can reduce the moral culpability of an offender and justify a meaningful reduction in sentence, but it does not operate to bring a sentence below the range that the objective seriousness of the offence demands.
  • The Court of Criminal Appeal confirmed that where counsel have agreed to a specific discount at first instance and that agreement is not challenged on appeal, the appellate court will generally carry that discount forward on resentencing.
  • Form 1 matters involving serious, large-scale drug offending carry significant weight in the sentencing exercise and cannot be treated as inconsequential simply because they are not the subject of a separate penalty.
  • In dismissing the adequacy of the original 12-year starting point, the Court treated the statutory maximum of life imprisonment and the standard non-parole period of 15 years as independent reference points that must both inform the assessment of an appropriate sentence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 37 (Form 1 procedure)

Cases:
- AG's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999; No 1 of 2000 (2002) 56 NSWLR 146
- Des Rosiers v R [2006] NSWCCA 6
- Power v The Queen (1974) 131 CLR 623
- R v Hampton (1998) 44 NSWLR 729
- R v Simpson (2001) 53 NSWLR 704
- R v Way (2004) 60 NSWLR 168
- The Queen v Olbrich (1999) 199 CLR 270