AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 8 August 2007

R v Nikolic

[2007] NSWCCA 232

Drugs
CRIMINAL LAW SENTENCE CROWN APPEAL WHETHER SENTENCE MANIFESTLY INADEQUATE WHETHER "BOTTOM UP" APPROACH TO SENTENCING APPROPRIATE.

Citation: R v Nikolic [2007] NSWCCA 232
Court: New South Wales Court of Criminal Appeal
Date: 8 August 2007
Judge(s): McClellan CJ at CL, Hidden J, Rothman J

Background

The respondent pleaded guilty in the District Court to knowingly taking part in the supply of a large commercial quantity of ecstasy. The offence arose from a drug production operation at a house in Dee Why in February 2005, where he and a co-offender were found with almost 44 kilograms of ecstasy, roughly 88 times the prescribed large commercial quantity. The respondent had no prior convictions and played a lesser, though still central, role compared to his co-offender.

The respondent became involved because he felt indebted to his co-offender's family, who had sheltered his son during conflict in Serbia. The sentencing judge accepted that he did not know the house would be used for drug production until partway through the operation, and that he received no financial reward for his assistance.

The District Court sentenced him to nine years' imprisonment, with a non-parole period of six years. The Crown appealed, arguing the sentence was manifestly inadequate, particularly in light of the Court of Criminal Appeal's earlier decision on the co-offender's sentence in R v Stankovic.

  • Whether the sentence of nine years (with a six-year non-parole period) was manifestly inadequate for an offence of knowingly taking part in the supply of a large commercial quantity of ecstasy.
  • Whether the sentencing judge erred by adopting a "bottom-up" approach to the sentencing exercise, rather than identifying an appropriate starting point and then applying discounts.
  • Whether, on a Crown appeal, the Court of Criminal Appeal should exercise its residual discretion to decline to intervene, having regard to the respondent's difficult personal circumstances in custody.

Decision

The Court of Criminal Appeal allowed the Crown appeal, finding the sentence manifestly inadequate. Hidden J (with whom McClellan CJ at CL and Rothman J agreed) identified the core problem as a starting point that was far too low relative to the one established for the co-offender in Stankovic. In that earlier appeal, the Court had set a starting point of 18 years for the co-offender, who had additional aggravating features including offending while on bail and Form 1 matters. A difference in starting points of approximately seven years between the two offenders could not be justified by the respondent's lesser role alone.

Hidden J concluded that the error stemmed from the sentencing judge's "bottom-up" approach to the exercise, meaning the judge worked upward from a low base rather than identifying a proper starting point for the objective seriousness of the offence and then applying discounts. This methodology produced an outcome inconsistent with the sentence imposed on the co-offender in Stankovic.

The Court acknowledged the respondent's personal circumstances in custody, including separation from his family in Serbia and difficulties arising from that separation, as well as his engagement in educational courses. These matters were considered in the exercise of the Court's residual discretion, but were found insufficient to warrant declining to intervene.

In re-sentencing, the Court adopted the same characterisation of the respondent's objective criminality as the sentencing judge, accepted a 15% discount for the plea of guilty, and found special circumstances warranting a longer balance of term. Exercising the restraint appropriate to a Crown appeal, the Court set a starting point of 15 years, which after the 15% discount produced a total sentence of 12 years and 9 months.

Orders Made

  • The Crown appeal was allowed.
  • The sentence passed in the District Court was quashed.
  • The respondent was re-sentenced to a non-parole period of eight-and-a-half years, commencing 26 February 2005 and expiring 25 August 2013.
  • A balance of term of four years and three months was imposed, commencing 26 August 2013 and expiring 25 November 2017.

Key Takeaways

  • A "bottom-up" sentencing approach, where a judge works upward from a low base rather than fixing an appropriate starting point first and then applying discounts, was identified by the Court of Criminal Appeal as a methodological error capable of producing a manifestly inadequate sentence.
  • Consistency between co-offenders is a relevant consideration: where the Court of Criminal Appeal has set a starting point for one offender, a vastly different starting point for a less culpable co-offender requires clear and proportionate justification.
  • Difficult personal circumstances in custody, including family separation and cultural dislocation, were considered but did not displace the Court's obligation to intervene where a sentence is manifestly inadequate.
  • The standard non-parole period for this offence is 15 years, against a maximum of life imprisonment, reflecting the extreme objective seriousness that attaches to large commercial drug supply.
  • In re-sentencing after a successful Crown appeal, the Court of Criminal Appeal applied restraint in fixing the replacement sentence, consistent with established principles governing the exercise of that jurisdiction.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)

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