Apolevski v Kinnane

Case [2010] ACTSC 43

STEVCE APOLEVSKI v DAMIEN KINNANE

[2010] ACTSC 43 (17 May 2010)

APPEAL – appeal from Magistrates Court of the ACT – section 208 Magistrates Court Act 1930 (ACT) – principles to conduct appeals.
CRIMINAL LAW – sentencing – motor traffic offences – whether “contumacious” – relevance of remorse.

Road Transport (Driver Licensing) Act 1999 (ACT), s 32(1)(a)
Court Procedures Rules 2006 (ACT), r 5193
Magistrates Court Act 1930 (ACT), ss 214, 216, Pt 3.10

Crimes (Sentencing) Act 2005 (ACT), s 11(3)(b), Pts 3.2, 4.2

Fox, R “When Justice Sheds a Tear:  The Place of Mercy in Sentencing” (1999) 25 Monash University Law Review I

Ledson v Taylor, Robison & Brown [2010] ACTSC 42
Barac v Thexton [2008] ACTSC 137
Campbell v Fortey (1987) 85 FLR 462
Charnock v Coady, Tootal, Watson, Lester, Thomas and Coutts [2010] ACTSC 26
Talukder v Dunbar [2009] ACTSC 42
R v Storey [1998] 1 VR 359
Police v Hill (2005) 93 SASR 307
R v Martin [1989] 1 All ER 652
Sheean (1999) 106 A Crim R 38
Cotter v Corvisy (2008) 1 ACTLR 299
Cameron v The Queen (2002) 209 CLR 339
Neil v Steel (1973) 5 SASR 67
Moh v Pine [2010] ACTSC 27
Markovic v The Queen [2010] VSCA 105
Qutami (2001) 127 A Crim R 369
R v Palu [2002] NSWCCA 381
R v Niketic [2002] NSWCCA 425

Cooper (1998) 103 A Crim R 51
Spatolisano v Hyde [2009] ACTSC 161
Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435
CDJ v VAJ (1998) 197 CLR 172

ON APPEAL FROM DECISION OF THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 29 of 2010

Judge:            Refshauge J
Supreme Court of the ACT

Date:              17 May 2010

IN THE SUPREME COURT OF THE       )
  )          No. SCA 29 of 2010
AUSTRALIAN CAPITAL TERRITORY    )

ON APPEAL FROM THE DECISION OF THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:STEVCE APOLEVSKI

Appellant

AND:DAMIEN KINNANE

Respondent

ORDER

Judge:  Refshauge J
Date:  17 May 2010
Place:  Canberra

THE COURT ORDERS THAT:

  1. The appeal is allowed.

  1. The sentence of the Magistrates Court is set aside.

  1. In lieu, Mr Apolevski is sentenced to imprisonment for 4 months from 7 April 2010 until 7 August 2010.

  1. On 20 May 2010, the sentence is to be suspended for 18 months.

  1. Mr Apolevski is ordered to sign an undertaking to comply with the offenders’ good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months from 20 May 2010 with the following additional conditions:

(a)      That for 18 months from 20 May 2010 he be subject to supervision by the delegate of the Chief Executive and obey all reasonable directions of the person delegated to supervise him;  and

(b)      That he perform 120 hours of community service within 12 months of 20 May 2010.

  1. Driving without a licence because the driver has been disqualified by a court from holding one, or his or her licence has been…

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AGLC
Apolevski v Kinnane [2010] ACTSC 43
Case
[2010] ACTSC 43
Decision Date

CaseChat Overview and Summary

The appeal in Apolevski v Kinnane was brought by the appellant, Mr Apolevski, against a decision of the Magistrates Court of the Australian Capital Territory. The original matter related to Mr Apolevski's conviction for a motor traffic offence. The dispute centred on the sentence imposed by the Magistrates Court and whether it was appropriate in all the circumstances. The appeal was heard in the Supreme Court of the ACT, which was tasked with determining the correctness of the Magistrates Court's sentencing decision.

The primary legal issues the court needed to resolve were whether the sentence imposed by the Magistrates Court was excessive or inappropriate, and whether the Magistrates Court had correctly considered all relevant factors, including Mr Apolevski's remorse and his conduct during the proceedings. The court also had to determine whether Mr Apolevski's conduct could be described as "contumacious", which might affect the sentence.

The Supreme Court found that the Magistrates Court had not properly considered all the relevant factors when imposing the sentence. The court emphasised the importance of considering remorse and the offender's conduct in sentencing, particularly in cases involving traffic offences. The Supreme Court held that the sentence imposed was inappropriate and excessive. As a result, the appeal was allowed, the original sentence was set aside, and a new sentence was imposed, consisting of a period of imprisonment, a suspended sentence, and additional conditions for good behaviour and community service.

Orders

Orders of the court

1. The appeal is allowed.

2. The sentence of the Magistrates Court is set aside.

3. In lieu, Mr Apolevski is sentenced to imprisonment for 4 months from 7 April 2010 until 7 August 2010.

4. On 20 May 2010, the sentence is to be suspended for 18 months.

5. Mr Apolevski is ordered to sign an undertaking to comply with the offenders’ good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months from 20 May 2010 with the following additional conditions: (a) That for 18 months from 20 May 2010 he be subject to supervision by the delegate of the Chief Executive and obey all reasonable directions of the person delegated to supervise him; and (b) That he perform 120 hours of community service within 12 months of 20 May 2010.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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