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DPP v Malikovski

DPP v Malikovski

Case [2010] VSCA 130 12 May 2010

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0794

DIRECTOR OF PUBLIC PROSECUTIONS
	Appellant
v
EDMOND MALIKOVSKI	Respondent

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JUDGES:	MAXWELL P, NETTLE and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 May 2010
DATE OF JUDGMENT:	12 May 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 130
JUDGMENT APPEALED FROM:	R v Malikovski (Unreported, County Court of Victoria, Judge Patrick, 7 August 2007)

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CRIMINAL LAW – Appeal – Sentence – Crown appeal against sentence – Suspended sentence – Whether individual sentences or orders for cumulation manifestly inadequate – Whether suspension of sentence rendered it manifestly inadequate – Respondent pleaded guilty to numerous counts of affray, robbery, recklessly causing injury and recklessly causing serious injury – Respondent sentenced to 16 months’ imprisonment wholly suspended for 18 months and community-based order of 12 months – Totality – Parity – Delay – Rehabilitation – Appeal dismissed.

CRIMINAL LAW – Appeal – Sentence – Crown appeal – Sentencing range – Crown submission on applicable range – Whether appeal raised question of principle.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecution	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr M J Croucher	Galbally & O’Bryan

MAXWELL P:

I will invite Nettle JA to deliver the first judgment.

NETTLE JA:

This is a Crown appeal against a total effective sentence of 16 months' imprisonment, wholly suspended, which was imposed on the respondent on pleading guilty to three counts of affray (Counts 1, 2 and 7); four counts of robbery (Counts 3, 4, 13 and 14); five counts of intentionally causing injury (Counts 5, 6, 8, 9 and 10); and two counts of recklessly causing serious injury (Counts 1 and 12).

The circumstances of the offending appear from the judge's sentencing remarks. The offences were committed over what the judge described as a ‘two day period of mindless violence on 12 and 13 November 2005’. They involved the respondent, 11 co-offenders and a number of other youths. At the time of the offences, the respondent was only 18 years of age.

On the evening of Friday 11 November 2005, the respondent and several co-offenders drove together in a car driven by Armiljand Gjeloshi. The group was loosely known as the ‘Albanians’, although not all of them were of Albanian descent. As they proceeded they drank bottles of vodka cruiser and made plans to steal mobile phones from persons on the street. They went to a nearby milk bar where they met up with another carload of young men driven by Haris Alicic. That second group were known as the ‘Bosnians’, although not all of them were of Bosnian descent.

The respondent then got into Alicic's car and both cars drove to a party which had been underway for some time at Carrum. There they met up with a third carload of youths driven by Gordon Sellers. By that stage, most of the party goers had left, but among those remaining were Samuel Taylor and a…

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 DPP v Malikovski

Details

AGLC: DPP v Malikovski [2010] VSCA 130
Case: [2010] VSCA 130
Decision Date: 12 May 2010

CaseChat Overview and Summary

The case of DPP v Malikovski was heard in the Court of Appeal, where the Director of Public Prosecutions appealed against the sentence imposed on the respondent, who had pleaded guilty to multiple serious offences including affray, robbery, and causing injury. The respondent was sentenced to 16 months’ imprisonment, which was wholly suspended for 18 months, along with a 12-month community-based order. The Crown argued that the sentence was manifestly inadequate, both individually and in its cumulative effect, and that the suspension of the custodial sentence rendered it inadequate.

The central legal issues for the court to determine were whether the individual sentences and orders imposed were manifestly inadequate and whether the suspension of the imprisonment term rendered the sentence inadequate. The Crown submitted that the sentencing range was such that the sentence imposed was manifestly inadequate and that the appeal raised a question of principle. The court had to consider the principles of totality, parity, delay, and rehabilitation in assessing the adequacy of the sentence.

The Court of Appeal found that the sentence was not manifestly inadequate. The court determined that the sentence reflected the totality of the offences committed, appropriately accounted for the delay in bringing the respondent to justice, and was consistent with sentences for similar offences. The court also considered the respondent's prospects for rehabilitation, which were reflected in the imposition of a community-based order. Consequently, the appeal was dismissed, affirming the original sentence.

Orders