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Cvetkovic v R

Cvetkovic v R

Case [2013] NSWCCA 66 3 April 2013

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Court of Criminal Appeal

New South Wales

Case Title: Cvetkovic v R

Medium Neutral Citation: [2013] NSWCCA 66

Hearing Date(s): 5 March 2013

Decision Date: 03 April 2013

Before: Price J at [1]
McCallum J at [2]
Schmidt J at [90]

Decision:
Leave to appeal against sentence granted; appeal dismissed

Catchwords: CRIMINAL LAW - Criminal procedure - Appeal - Appeal out of time - Applicant with major depressive illness - Extension of time granted

CRIMINAL LAW - Sentence appeal - Wounding with intent to murder - No error demonstrated or grounds upon which less sever sentence warranted

Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002
Criminal Appeal Act 1912
Criminal Appeal Rules

Cases Cited: Christodoulou v The Queen [2008] NSWCCA 102
Cvetkovic v R [2010] NSWCCA 329
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
R v Baker [2000] NSWCCA 85
R v Cool (NSWCCA, 2 June 1994, unreported)
R v Glencourse (1995) 78 A Crim R 256
R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179
R v Macadam-Kellie [2001] NSWCCA 170
R v Quach [2002] NSWCCA 173
R v Roberts (NSWCCA 8 March 1994, unreported)
R v Sinclair (NSWCCA, 4 March 1998, unreported)
R v Zegura [2006] NSWCCA 230

Category: Principal judgment

Parties: Dragan Cvetkovic (appellant)
Crown (respondent)

Representation

- Counsel: Counsel:

- Solicitors: Solicitors:
Director of Public Prosecutions (Crown)

File Number(s): 2008/1107

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Sweeney DCJ

- Date of Decision: 07 August 2009

- Court File Number(s): 2008/1107

Publication Restriction: None

JUDGMENT

Price J: I agree with McCallum J.
McCallum J: Dragan Cvetkovic was found guilty by a jury of wounding with intent to murder, contrary to s 27 of the Crimes Act 1900. The maximum penalty for that offence is imprisonment for 25 years. The offence carries a standard non-parole period under s 54A of the Crimes (Sentencing Procedure) Act 1999 of 10 years. The applicant was sentenced to a term of imprisonment with a non-parole period of 13 years and a balance of term of 4 years and 4 months. An appeal against his conviction was dismissed by this Court: Cvetkovic v R [2010] NSWCCA 329. Leave to appeal against that decision was refused by the High Court. He now seeks leave under s 5(1)(c) of the Criminal Appeal Act 1912 to bring a separate appeal against the sentence passed following his conviction.
The application was not brought within the period prescribed under regulation 3B of the Criminal Appeal Rules. The applicant was sentenced on 7 August 2009. He did not give notice of his intention to apply for leave to appeal against the sentence passed. Accordingly, the application for leave to appeal ought to…

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 Cvetkovic v R

Details

AGLC: Cvetkovic v R [2013] NSWCCA 66
Case: [2013] NSWCCA 66
Decision Date: 03 April 2013

CaseChat Overview and Summary

The case of Cvetkovic v R involved an appeal against a conviction and sentence for wounding with intent to murder. The applicant, Cvetkovic, sought an extension of time to appeal the decision of the Court of Appeal, which had dismissed an earlier appeal. The matter was heard in the High Court of Australia. Cvetkovic contended that his major depressive illness impacted his capacity to comply with the statutory time limit for filing the appeal, and he sought an extension on this basis.

The primary legal issue before the court was whether Cvetkovic's major depressive illness was sufficient to warrant an extension of time for the appeal. The court also needed to determine if the appeal against the sentence was valid and whether there were any grounds upon which a lesser sentence would be warranted. The High Court had to balance Cvetkovic's right to appeal against the need for finality in criminal matters and the severity of the crime committed.

The High Court held that Cvetkovic's major depressive illness did indeed impact his capacity to comply with the statutory time limit for filing the appeal, and therefore granted an extension of time. However, upon reviewing the appeal against the sentence, the court found that no error was demonstrated and no grounds existed upon which a lesser sentence would be warranted. Consequently, the appeal against the sentence was dismissed. The court emphasised the importance of finality in criminal matters while acknowledging the unique circumstances of Cvetkovic's case.

The final orders of the court were that the extension of time for the appeal was granted, and the appeal against the sentence was dismissed. The original conviction and sentence for wounding with intent to murder remained in place.

Orders