Dragan Cvetkovic v The Queen

[2013] HCASL 131

DRAGAN CVETKOVIC

v

THE QUEEN

[2013] HCASL 131
S86/2013

1. On 22 July 2009, following a jury trial in the District Court of New South Wales, the applicant was convicted of wounding with intent to murder, contrary to s 27 of the Crimes Act 1900 (NSW). On 7 August 2009, he was sentenced to a term of imprisonment of 17 years and four months, including a non-parole period of 13 years. He appealed unsuccessfully to the Court of Criminal Appeal against his conviction and an application for special leave to appeal to the High Court was refused.

2. By leave, he appealed out of time to the Court of Criminal Appeal against his sentence.  His grounds of appeal included that the sentencing judge (Sweeney DCJ) erred:  in finding that the seriousness of the offence was in a high range; by placing excessive or insufficient weight upon a number of factual matters, including that the applicant harmed himself at the time of the offence by self-inflicted stab wounds; by not discounting the sentence by reference to a number of alleged mitigating factors; and by having regard to general deterrence in circumstances where the applicant suffered from a major depressive illness.  He also contended that the sentence imposed was manifestly excessive and unduly harsh having regard to the sentences imposed in comparable cases.

3. The Court of Criminal Appeal (Price, McCallum and Schmidt JJ) dismissed the applicant's appeal on 3 April 2013.  It found no error in the sentencing judge's approach, concluding that it was open to her Honour to assess the seriousness of offending in a high range, and that in respect of the applicant's individual complaints of inappropriate weight being placed upon facts, evidence, or mitigating factors, none were well-founded.  Nor did it find error in the sentencing judge's approach to the evidence of the applicant's depressive illness.  In relation to comparable cases, the Court of Criminal Appeal accepted that the applicant's sentence was "extremely stern", but concluded that the offending conduct fell "little short in culpability of the offence of murder" and that the sentence imposed was within a proper range.

4. In relation to the appropriate weight to be placed upon the applicant's deliberately self-inflicted harm, the Court of Criminal Appeal held that the sentencing judge correctly applied Christodoulou v The Queen[1], which held that injuries deliberately self-inflicted in the course of committing a crime are not a factor in mitigation of sentence for that crime.  The Court of Criminal Appeal observed that the applicant did not submit that that case was wrongly decided.

   [1][2008] NSWCCA 102.

5. In his application for special leave to appeal, the applicant largely repeats the grounds of appeal that were before the Court of Criminal Appeal.  He also argues that he challenged the correctness of Christodoulou v The Queen "by inference".  An appeal on the ground that Christodoulou v The Queen was wrongly decided would enjoy insufficient prospects of success to warrant a grant of special leave to appeal.  Otherwise, no question of principle is raised and the interests of justice do not warrant a grant of special leave to appeal.

6. Pursuant to r 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
14 August 2013 S.J. Gageler