Sinkovich v R [2014] NSWCCA 97

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Sinkovich v R [2014] NSWCCA 97 Hearing dates: 5 May 2014 Decision date: 27 May 2014 Before: Basten JA at [1]; Fullerton J at [6]; R A Hulme J at [7] Decision: Allow the appeal. In respect of the sentences imposed in the District Court on 6 November 2009 maintain that which was imposed for count 1 but quash that which was imposed for count 2. In lieu, sentence the appellant in respect of count 2 to imprisonment comprising a non-parole period of 7 years and 6 months and a balance of the term of the sentence of 3 years and 6 months. The sentence will date from 4 July 2009; the appellant will become eligible for release on parole upon the expiration of the non-parole period on 3 January 2017; and the total term of the sentence will expire on 3 July 2020. Catchwords: CRIMINAL LAW - appeal against sentence - referral pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 - Muldrock error conceded - sentence "towards the upper end of the range" - new affidavit material does not alter subjective case - lesser sentence warranted if standard non-parole period not given determinative significance - appeal allowed and new sentence imposed Legislation Cited: Crimes (Appeal and Review Act) 2001 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Drugs Misuse and Trafficking Act 1985 (NSW) Cases Cited: AB v R [2013] NSWCCA 273 Filippou v R [2013] NSWCCA 92 Koh v R [2013] NSWCCA 287 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Way [2004] NSWCCA 131; 60 NSWLR 168 Sinkovich v R [2011] NSWCCA 90 Category: Principal judgment Parties: Frank John Sinkovich (Appellant) Regina (Respondent) Representation: Counsel: Mr D Barrow (Appellant) Mr R Herps (Crown) Solicitors: Legal Aid NSW Solicitor for Public Prosecutions File Number(s): 2009/915 Decision under appeal Jurisdiction: 9101 Date of Decision: 2009-11-06 00:00:00 Before: Conlon SC DCJ File Number(s): 2009/11/0218