Ilievski v R [2014] NSWCCA 321

Ilievski v R [2014] NSWCCA 321

The appeal was allowed because the finding that the applicant was the ringleader or organiser was not supported by the material identified by the sentencing judge, the sentence was in any event manifestly excessive, and the applicant was entitled to feel a legitimate sense of grievance when his sentence was compared with that imposed on Kostovski, whose offending was more extensive and involved property of greater value. A lesser aggregate sentence of 10 years with a non-parole period of 6 years was warranted, taking into account the overall offending, parity, and the applicant's need for supervision and poor physical and mental health.

Jurisdiction
Australia
Judgment Date
18 December 2014
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence
Outcome
Leave to appeal granted; appeal allowed; sentence quashed; applicant resentenced to imprisonment with a non-parole period of 6 years and a balance of term of 4 years.
Legal Topics
['sentence Appeal' 'manifest Excess' 'intellectual Disability' 'parity' 'aggregate Sentence' 'breaking, Entering and Stealing']
['criminal Law' 'sentencing'] ['sentence Appeal' 'manifest Excess' 'intellectual Disability' 'parity' 'aggregate Sentence' 'breaking, Entering and Stealing']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence

Legal Issues

  1. 1 ['Whether the sentence imposed was too severe.' "Whether the sentencing judge erred in failing to take into proper consideration the applicant's intellectual disability." 'Whether the sentencing judge erred in finding that the applicant was the mastermind behind the offences and sentencing him as the principal offender.' 'Whether the sentencing judge erred in not properly applying the principles of parity in sentencing.']

Ratio Decidendi

The appeal was allowed because the finding that the applicant was the ringleader or organiser was not supported by the material identified by the sentencing judge, the sentence was in any event manifestly excessive, and the applicant was entitled to feel a legitimate sense of grievance when his sentence was compared with that imposed on Kostovski, whose offending was more extensive and involved property of greater value. A lesser aggregate sentence of 10 years with a non-parole period of 6 years was warranted, taking into account the overall offending, parity, and the applicant's need for supervision and poor physical and mental health.

Court Disposition

Leave to appeal granted; appeal allowed; sentence quashed; applicant resentenced to imprisonment with a non-parole period of 6 years and a balance of term of 4 years.

Orders

  • ['Leave to appeal be granted.' 'The appeal be allowed.' 'The sentence passed at first instance be quashed and in substitution therefor the applicant be sentenced to a term of imprisonment with a non-parole period of 6 years commencing on 12 April 2012 and expiring on 11 April 2018 and a balance of term of 4 years...