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:
The appeal is allowed.
The sentence of the Magistrates Court is set aside.
In lieu, Mr Apolevski is sentenced to imprisonment for 4 months from 7 April 2010 until 7 August 2010.
On 20 May 2010, the sentence is to be suspended for 18 months.
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.
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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- Apolevski v Kinnane [2010] ACTSC 43
- Case
- [2010] ACTSC 43
- Decision Date
CaseChat Overview and Summary
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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