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Benkic v The Queen

Benkic v The Queen

Case [2019] VSCA 34 28 February 2019

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2019 0020

CORI BENKIC	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 February 2019
DATE OF JUDGMENT:	28 February 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 34
SENTENCE APPEALED FROM:	DPP v Benkic (Unreported, County Court of Victoria, Judge Carmody, 10 December 2018)

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CRIMINAL LAW — Sentence — Appeal — Burglary, theft of firearms and other offences — Whether the judge erred in categorising the offending — Whether a sentence of 18 months’ imprisonment with a 2 year CCO manifestly excessive — Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Hannan	James Dowsley & Associates
For the Respondent	Ms G A Coghlan	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

The application in this Court

Cori Benkic, now aged 24 years,[1] seeks leave to appeal against a sentence of one year and nine months’ imprisonment, to be followed upon release by a community correction order (‘CCO’) of two years’ duration (with supervision and treatment conditions), imposed upon him by a judge of the County Court on 10 December 2018, following his pleas of guilty to burglary[2] (charge 1) and theft of a firearm[3] (charge 2), and to the related summary offences of dealing in property suspected of being the proceeds of crime[4] (charge 19) and failing to stop on direction[5] (charge 23).
[1]His date of birth is 31 March 1994.
[2]Crimes Act 1958, s 76(1). The maximum penalty is 10 years’ imprisonment.
[3]Crimes Act 1958, s 74AA(1). The maximum penalty is 1800 penalty units or 15 years’ imprisonment.
[4]Crimes Act 1958, s 195. The maximum penalty is 2 years’ imprisonment.
[5]Road Safety Act 1986, s 64A. The maximum penalty is 60 penalty units or 6 months’ imprisonment (or both).

The sentencing orders made by the judge are reflected in the following table:

Charge Offence Sentence Cumulation

Indictable Offences

1 Burglary 2 year CCO, with supervision and treatment conditions —

2 Theft of firearm 18 months’ imprisonment Base

Summary offences

19 Deal in property suspected of being proceeds of crime 6 months’ imprisonment 2 months

23 Failing to stop on direction 3 months’ imprisonment 1 month

Total effective sentence 1 year and 9 months’ imprisonment, followed by 2 year CCO, with supervision and treatment conditions

Non-parole period Nil

Presentence detention 539 days

Other orders License cancelled and disqualified for 6 months; forensic sample order

Section 6AAA statement 3 years and 6 months’ imprisonment, with a non-parole period of 2 years and 3 months

The applicant relies on two grounds as follows:

1. The learned sentencing judge erred by categorising charges 1 and 2 as not at the lower end of this type of offending.
Particulars:
(a)The learned sentencing erred by categorising the victims as ‘soft targets’.

2. The individual sentences, orders for cumulation, total effective sentence and imposition of a Community Correction Order are each manifestly…

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 Benkic v The Queen

Details

AGLC: Benkic v The Queen [2019] VSCA 34
Case: [2019] VSCA 34
Decision Date: 28 February 2019

CaseChat Overview and Summary

Benkic, the appellant, lodged an appeal against his conviction and sentence for burglary, theft of firearms, and other related offences. The case was heard by the High Court of Australia. The appellant contended that the primary judge had erred in the classification of his offending and that the sentence imposed was manifestly excessive. The Crown opposed the appeal, arguing that the sentence was appropriate given the seriousness of the crimes committed.

The central legal issue before the court was whether the primary judge had erred in the categorisation of the offending and whether the sentence of 18 months’ imprisonment with a two-year community correction order was manifestly excessive. The court considered the principles of sentencing and the applicable statutory provisions, weighing the gravity of the offences and the appellant's background.

In assessing the appeal, the court noted that the primary judge had carefully considered the relevant factors and appropriately categorised the offending. The court also found that the sentence was within the range of what could be considered reasonable and appropriate, taking into account the appellant's criminal history and the seriousness of the crimes. Consequently, the appeal was dismissed, and the original sentence was upheld. The court determined that the sentence imposed was not manifestly excessive, and the classification of the offending was correct.

Orders