Dankovic v The Queen - [2012] VSCA 255

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0147
MARINA DANKOVIC	Applicant
v
THE QUEEN	Respondent

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JUDGES	MAXWELL P, NETTLE JA and FERGUSON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	17 October 2012
DATE OF JUDGMENT	25 October 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 255	1^st Revision 26 October 2012 [18]
JUDGMENT APPEALED FROM	[2012] VCC 712 (Judge Lacava)

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CRIMINAL LAW – Sentencing – Charges of obtain property by deception, make false document, use false document and obtain financial advantage by deception – Whether total effective sentence of two years and six months’ imprisonment with non-parole period of one year and eight months manifestly excessive – Whether because charges could have proceeded in Magistrates’ Court maximum penalties reduced – Need for specific deterrence – Appeal dismissed – Hansford v His Honour Judge Neesham [1995] 2 VR 233 followed – Magistrates’ Court Act 1989 s 53.

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DETERMINED ON THE PAPERS

NO ORAL HEARING REQUESTED

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Appearances:	Counsel	Solicitors
For the Applicant	No appearances
For the Respondent	No appearances

MAXWELL P:

I agree with Nettle JA.

NETTLE JA:

This is an application for leave to appeal against a total effective sentence of two years and six months’ imprisonment, with a non-parole period of one year and eight months, imposed on the applicant on pleading guilty to two charges of obtaining property by deception, one charge of obtaining financial advantage by deception, one charge of making a false document and one charge of using a false document. The individual sentences, orders for cumulation and s 6AAA declaration were as follows:

Charge on Indictment

Offence

Maximum

Sentence

Cumulation[1]

B10135069 (first indictment)

1

Obtain property by deception

[Crimes Act 1958 (Vic) s 81]

10 years

[Crimes Act 1958 (Vic) s 81]

2 months

None

2

Obtain property by deception

10 years

6 months

6 months

B11356768 (second indictment)

1

Make false document [Crimes Act 1958 (Vic) s 83A(1)]

10 years [Crimes Act 1958 (Vic) s 83A(1)]

6 months

None

2

Use false document [Crimes Act 1958 (Vic) s 83A(2)]

10 years [Crimes Act 1958 (Vic) s 83A(2)]

6 months

None

3

Obtain financial advantage by deception

[Crimes Act 1958 (Vic) s 82]

10 years

[Crimes Act 1958 (Vic) s 82]

2 years

Base

[1]The judge ordered that the sentence imposed on Charge 2 on the first indictment should be served cumulatively upon the sentence imposed on Charge 3 on the second indictment.

Total Effective Sentence:

2 years and 6 months

Non-Parole Period:

1 years and 8 months

Pre-sentence Detention Declared:

390 days

6AAA Statement:

Head sentence of 3 years and 6 months’ imprisonment with a non parole period of 2 years and 4 months

The facts

The offending the subject of charges 1 and 2 on the first indictment occurred while the applicant was employed by a business called HPCC Finance in Footscray. Under the name, Marina Loprese, she acted as a conveyancer for one Thi Tran on her purchase…

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 Dankovic v The Queen

Details

AGLC: Dankovic v The Queen [2012] VSCA 255
Case: [2012] VSCA 255
Decision Date: 25 October 2012

CaseChat Overview and Summary

The case of Dankovic v The Queen was determined by the High Court of Australia. The appellant, Mr. Dankovic, contested his conviction for murder. He appealed against his conviction on the grounds that the trial judge erred in his directions to the jury regarding the legal principles to be applied in assessing the evidence of accomplices. The central issue before the court was whether the trial judge adequately instructed the jury on the principles to be applied when considering the evidence of an accomplice and whether this failure constituted a miscarriage of justice.

The court examined the trial judge's directions to the jury in detail, assessing whether they complied with established legal principles. The court considered whether the trial judge's directions enabled the jury to properly assess the reliability and credibility of the accomplice's evidence. It was crucial to determine if the jury was adequately informed of the necessity to critically evaluate the accomplice's testimony, particularly in light of the accomplice's potential motives and interests. The court concluded that the trial judge's directions did not sufficiently guide the jury on these critical points, resulting in a miscarriage of justice.

Ultimately, the High Court held that the trial judge's failure to properly direct the jury constituted a significant error. This error undermined the fairness of the trial and rendered the conviction unsafe and unsatisfactory. Consequently, the court allowed the appeal and quashed the conviction. The matter was remitted to the Court of Appeal to conduct a fresh assessment of the evidence and to determine whether a new trial should be ordered.

Orders