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 warrantedLegislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002
Criminal Appeal Act 1912
Criminal Appeal RulesCases 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 230Category: 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…
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- Cvetkovic v R [2013] NSWCCA 66
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- [2013] NSWCCA 66
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CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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