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Bogdanovich v The Queen

Bogdanovich v The Queen

Case [2011] VSCA 388 25 November 2011

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2010 289

JEFFREY BOGDANOVICH
	Appellant
v
THE QUEEN
	Respondent

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JUDGES	ASHLEY and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	18 October 2011
DATE OF JUDGMENT	25 November 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 388
JUDGMENT APPEALED FROM	R v Bogdanovich (Unreported, County Court of Victoria, Judge Jenkins, 30 July 2010)

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CRIMINAL LAW – Appeal – Sentence – Appellant sentenced on two indictments – Armed robbery, attempt to obtain property by deception, robbery, intentionally causing injury, conduct endangering persons (first indictment) – Theft x 3, reckless conduct endangering life x 8 (second indictment) – Judge ordered total cumulation between sentences on each indictment, making a total effective sentence of 10 years, and between that sentence and sentence of three years and eight months already being served – Effect of cumulation that appellant to serve 13 years and eight months – In addition, appellant had served four and a half months for breach of parole for which he received no credit – Overall result of judge’s sentence that appellant might have to serve more than 14 years – Judge fixed new single non-parole period of nine years – Principle of totality – Sentence manifestly excessive – Appeal allowed – Need to re-sentence – Court informed that appellant subsequently sentenced by County Court for other offences with two years cumulated upon earlier sentence – Overall effect that appellant might have to serve more than 16 years – Application of totality principle on re-sentencing – Sentence reduced – New single non-parole period fixed – No point of principle

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J Kelly	Leanne Warren & Associates
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

WEINBERG JA:

This appeal illustrates, yet again, some of the difficulties that can arise when it becomes necessary to apply the totality principle in respect of multiple offences dealt with by different courts.

On 9 July 2010, the appellant pleaded guilty in the County Court at Melbourne to a number of charges contained in two separate indictments. He was sentenced for those offences on 30 July 2010.

Indictment A10346353 (‘the first indictment’) charged five indictable offences, and one related summary offence. Indictment Y02444907B (‘the second indictment’), charged 11 indictable offences and 10 related summary offences.

The offences charged in the two indictments were as follows:

INDICTMENT A10346353

Offence

Maximum Penalty

Sentence

Cumulation

Armed robbery (Charge 1)

25 years

3 years

Base sentence

Attempting to obtain property by deception (Charge 2)

5 years

4 months

Robbery (Charge 3)

15 years

18 months

8 months

Intentionally causing injury (Charge 4)

10 years

15 months

5 months

Conduct endangering persons (Charge 5)

5 years

8 months

3 months

Failing to stop after an accident (Summary charge)

14 days (1st offence); otherwise 1 month
(minimum 14 days)

14 days

Sentence imposed on Indictment A10346353
4 years, 4 months

INDICTMENT Y02444907B

Offence

Maximum Penalty

Sentence

Cumulation

Theft…

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 Bogdanovich v The Queen

Details

AGLC: Bogdanovich v The Queen [2011] VSCA 388
Case: [2011] VSCA 388
Decision Date: 25 November 2011

CaseChat Overview and Summary

The appellant in Bogdanovich v The Queen was convicted on two separate indictments, facing charges that included armed robbery, attempt to obtain property by deception, robbery, intentionally causing injury, conduct endangering persons, theft, and reckless conduct endangering life. The appellant appealed against the sentence imposed by the County Court, arguing that the total effective sentence of 13 years and eight months, plus the additional four and a half months for breach of parole without credit, amounted to a manifestly excessive sentence. The appeal was heard by the higher court, which reviewed the legal issues surrounding the application of the principle of totality in sentencing.

The legal issues before the court involved the proper application of the principle of totality in determining the appropriate sentence for the appellant. The court needed to consider whether the cumulative effect of the sentences imposed was excessive and whether the principle of totality was adequately applied. The principle of totality ensures that the overall punishment for multiple offenses does not become disproportionately severe. The court also had to examine if the sentences imposed reflected the gravity of the offenses and the need to balance punishment, deterrence, and rehabilitation.

The court found that the total effective sentence imposed by the County Court was indeed excessive and did not appropriately apply the principle of totality. The court noted that the appellant might have to serve more than 14 years, and even after accounting for subsequent sentencing in the County Court for other offences, the appellant could potentially serve more than 16 years. The court acknowledged the need to re-sentence the appellant to ensure the sentence was just and proportionate. Upon re-sentencing, the court reduced the sentence and fixed a new single non-parole period, ensuring that the overall punishment was fair and in line with the principle of totality. The court concluded that there was no point of principle involved in the re-sentencing process, reaffirming the need for proportionality and appropriate application of sentencing principles.

Orders