Bejanov v The Queen - [2013] NSWCCA 207

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Bejanov v R [2013] NSWCCA 207
Hearing dates: 6 August 2013
Decision date: 09 September 2013
Before: Leeming JA at [1]
R A Hulme J at [2]
Button J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal allowed.
(3) Sentences with regard to sequences 1, 9, 13, and 17 quashed.
(4) With regard to sequence 1, and taking the matters on the Form 1 into account, the applicant is sentenced to imprisonment comprising a non-parole period of 3 years 1 month and a balance of the term of the sentence of 1 year 7 months. The sentence is to date from 15 December 2011. The non-parole period expires on 14 January 2015 and the total term expires on 14 August 2016.
(5) With regard to sequence 9, the applicant is sentenced to imprisonment comprising a non-parole period of 2 years 6 months with a balance of the term of the sentence of 1 year 8 months. The sentence is to date from 15 October 2012. The non-parole period expires on 14 April 2015 and the balance of the term expires on 14 December 2016.
(6) With regard to sequence 13, the applicant is sentenced to imprisonment comprising a non-parole period of 2 years with a balance of term of the sentence of 1 year. The sentence is to date from 15 July 2013. The non-parole period expires on 14 July 2015 and the balance of the term expires on 14 July 2016.
(7) With regard to sequence 17, the applicant is sentenced to imprisonment comprising a non-parole period of 2 years 6 months and a balance of term of the sentence of 2 years 6 months. The sentence is to date from 15 December 2012. The non-parole period expires on 14 June 2015 and the balance of the term expires on 14 December 2017.
(8) The first date upon which the applicant will be eligible for parole is 14 July 2015.

Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - sentence affected by mathematical error - position not disputed by Crown - multiple firearms offences - whether error in completely cumulative sentences with regard to same firearm - consequential changes required - whether sentence manifestly excessive - applicant resentenced
Legislation Cited: Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999
Firearms Act 1996
Weapons Prohibition Act 1998
Cases Cited: R v Achurch [2011] NSWCCA 186; (2011) 216 A Crim R 152
R v Badanjak [2004] NSWCCA 395
R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66
R v Nguyen [2013] NSWCCA 195
Troung v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36
Category: Principal judgment
Parties: Alexander Bejanov (applicant)
Regina (respondent)
Representation: Counsel:
D Barrow (applicant)
H Wilson (respondent)
Solicitors:
Legal Aid NSW (applicant)
Solicitor for Public Prosecutions (respondent)

File Number(s): 10/118316
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-02-10…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bejanov v The Queen

Details

AGLC: Bejanov v The Queen [2013] NSWCCA 207
Case: [2013] NSWCCA 207
Decision Date: 09 September 2013

CaseChat Overview and Summary

In the High Court of Australia, the matter of Bejanov v The Queen was heard, where the applicant sought leave to appeal against his sentence for multiple firearms offences. The applicant, Bejanov, argued that his sentence was affected by a mathematical error in the application of the cumulative sentencing principle. The Crown did not dispute that an error had occurred, but contended that the sentence was not manifestly excessive and did not warrant an appeal.

The central legal issue before the court was whether the error in the calculation of the cumulative sentence constituted a significant enough departure from the appropriate sentencing principles to warrant a resentencing. Specifically, the court had to determine whether the error in imposing completely cumulative sentences with regard to the same firearm warranted a resentencing. Additionally, the court considered whether, if a resentencing was required, the sentence would be manifestly excessive.

The court held that the mathematical error in calculating the cumulative sentence was significant enough to warrant a resentencing. The error resulted in the applicant being sentenced for the same firearm offence multiple times, leading to an overall excessive sentence. The court found that the error was not merely technical but had a consequential impact on the final sentence. The court concluded that the sentence, as originally imposed, was manifestly excessive due to the compounding effect of the error. Consequently, the court granted the applicant leave to appeal and ordered a resentencing.

Orders