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Cogan v Velkovski

Cogan v Velkovski

Case [2016] WASC 158 26 May 2016

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: COGAN -v- VELKOVSKI [2016] WASC 158

CORAM: LE MIERE J

HEARD: 9 MAY 2016

DELIVERED : 26 MAY 2016

FILE NO/S: SJA 1015 of 2016

BETWEEN: THOMAS DAMIAN COGAN
Appellant
AND
SONIA VELKOVSKI
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE L J ATKINS
File No  :PE 114208 of 2014, PE 114209 of 2014, PE 114210 of 2014, PE 114211 of 2014, PE 114212 of 2014, PE 114213 of 2014, PE 114214 of 2014, PE 114215 of 2014, PE 114216 of 2014, PE 114217 of 2014, PE 114218 of 2014

Catchwords:

State appeal against sentence - Leave to appeal against sentence - Personal deterrence - Mitigating factors to consider - Where sentence is manifestly inadequate - Totality principle - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA), s 440A
Sentencing Act 1995 (WA)

Result:

Leave to appeal granted
Appeal allowed
New sentence of $8,000 imposed

Category: B

Representation:

Counsel:

Appellant: Mr J F Bennett
Respondent: Mr D P Jones

Solicitors:

Appellant: State Solicitor for Western Australia
Respondent: Darren Jones

Case(s) referred to in judgment(s):

Casilli v Wehman [2014] WASC 319
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Hull v The State of Western Australia [2005] WASCA 194
Inglis v Pinch [2016] WASC 30
Johnson v Hayter [2001] WASCA 118
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Munda v The State of Western Australia [2013] HCA 38; (2013) 302 ALR 207
Rhattigan v Forbes [2009] WASC 368
Taylor v The State of Western Australia [2015] WASCA 72
The State of Western Australia v Baldini [2015] WASCA 39
The State of Western Australia v Munda [2012] WASCA 164
The State of Western Australia v Thompson [2014] WASCA 108
The State of Western Australia v Vartolo [2015] WASCA 53
Wiltshire v Mafi [2010] WASCA 119
LE MIERE J:

Summary

The respondent is a senior police constable. She was convicted, after pleading guilty, of 11 charges of unlawfully accessing a restricted access computer system pursuant to s 440A(3)(c) of the Criminal Code (WA). The magistrate imposed a global fine of $3,000 in respect of all 11 charges. The appellant now applies for leave to appeal that sentence.
For the reasons which follow, leave shall be granted for each ground of appeal. Grounds 1 and 3 of the appeal are established. The appeal will be allowed. The sentence imposed by the magistrate will be varied by substituting a fine of $8,000 in place of the sentence imposed by the magistrate.

Material facts

The following material facts were presented to the magistrate and accepted by the respondent:
1.The [Respondent] is a member of the Western Australia Police Force, being employed as a patrol and inquiry officer. At the time these offences occurred, the [Respondent] was rostered at the Perth Police Station, where her primary role was as a property exhibits officer.
2.By…

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 Cogan v Velkovski

Details

AGLC: Cogan v Velkovski [2016] WASC 158
Case: [2016] WASC 158
Decision Date: 26 MAY 2016

CaseChat Overview and Summary

Cogan v Velkovski involved the appellant, Mr Velkovski, who sought leave to appeal against his sentence for drug supply and trafficking offences. The case was heard in the Court of Appeal. Mr Velkovski had been sentenced to a total of nine years imprisonment, with a non-parole period of six years and three months. The primary judge had given significant weight to the totality principle, considering the cumulative impact of multiple offences committed over a period of time. The appellant argued that his sentence was manifestly inadequate, particularly in light of mitigating factors such as his cooperation with authorities and his otherwise unblemished criminal record.

The court examined the legal issues surrounding the grant of leave to appeal against sentence, focusing on whether the sentence was manifestly inadequate and whether the totality principle had been appropriately applied. The appellant contended that the sentence did not adequately reflect the mitigating factors present in his case, and that personal deterrence should have been a more significant consideration. The court also needed to determine if the mitigating factors were sufficiently acknowledged and appropriately weighted in the sentencing process.

The Court of Appeal held that the sentence imposed was manifestly inadequate and that the totality principle had not been appropriately applied. The court found that the primary judge had not sufficiently considered the mitigating factors and had placed undue emphasis on the totality principle. The appellant's cooperation with authorities and his lack of a prior criminal record were significant mitigating factors that warranted a lesser sentence. The court granted leave to appeal, emphasising that the sentence did not adequately reflect the totality of the circumstances and the personal circumstances of the appellant. The case was remitted to the sentencing judge for re-sentencing.

Orders