Mihelic v R [2019] NSWCCA 2

Mihelic v R [2019] NSWCCA 2

Ground 1 was made out because the sentencing judge did not refer to remorse, the applicant had given unchallenged sworn evidence and other material expressing remorse, and in the circumstances the sentencing judge should have taken remorse and identified prospects of rehabilitation into account. Ground 2 failed because, although the applicant had disposed of the phone used for drug dealings, he acceded to the undercover operative's request without threat, coercion or incentive other than profit, and police involvement did not reduce culpability. No lesser sentence was warranted because the effective sentence was already extremely lenient having regard to the seriousness and quantities of...

Jurisdiction
Australia
Judgment Date
01 February 2019
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal and Appeal to the Court of Criminal Appeal From Sentence Imposed in the District Court
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['supply of Prohibited Drugs' 'remorse as a Mitigating Factor' 'moral Culpability' 'police Involvement in Offending' 'controlled Operation' 'non Parole Period']
['criminal Law' 'sentencing' 'criminal Appeals'] ['supply of Prohibited Drugs' 'remorse as a Mitigating Factor' 'moral Culpability' 'police Involvement in Offending' 'controlled Operation' 'non Parole Period']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal and Appeal to the Court of Criminal Appeal From Sentence Imposed in the District Court

Legal Issues

  1. 1 ['Whether the sentencing judge erred in not finding that the applicant was remorseful.' "Whether the sentencing judge erred in not finding that the applicant's moral culpability was reduced as a result of the involvement of police." 'Whether, despite any error, a lesser sentence was warranted in law.']

Ratio Decidendi

Ground 1 was made out because the sentencing judge did not refer to remorse, the applicant had given unchallenged sworn evidence and other material expressing remorse, and in the circumstances the sentencing judge should have taken remorse and identified prospects of rehabilitation into account. Ground 2 failed because, although the applicant had disposed of the phone used for drug dealings, he acceded to the undercover operative's request without threat, coercion or incentive other than profit, and police involvement did not reduce culpability. No lesser sentence was warranted because the effective sentence was already extremely lenient having regard to the seriousness and quantities of...

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Leave to appeal granted.' 'Appeal dismissed.']