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Dragovic v The King

Dragovic v The King

Case [2024] VSCA 95 16 May 2024

Appeal

Criminal Damage

Common Assault

Persistent Contravention of Family Violence Intervention Order

Attempt to Pervert the Course of Justice

Committing Indictable Offence While on Bail

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0229

MICHAEL DRAGOVIC	Applicant
v
THE KING	Respondent

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JUDGES:	Kennedy and T Forrest JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 April 2024
DATE OF JUDGMENT:	16 May 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 95
JUDGMENT APPEALED FROM:	[2023] VCC 2217 (Judge Doyle)

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CRIMINAL LAW – Appeal – Sentence – Criminal damage – Common assault – Persistent contravention of family violence intervention order (‘FVIVO’) – Attempt to pervert the course of justice – Commit indictable offence whilst on bail – Applicant physically assaulted intimate partner and damaged property whilst on bail and then repeatedly contacted her by telephone from prison in contravention of FVIVO in order to pressure, guilt, threaten and intimidate her to change or withdraw her police statement – Applicant pleaded guilty to one charge of criminal damage, six charges of common assault, one charge of persistent contravention of FVIVO, one charge of attempting to pervert the course of justice and one charge of committing an indictable offence whilst on bail – Sentenced to 2 years’ imprisonment with a non-parole period of 1 year – Aggregate sentence on six assault charges – Whether aggregate sentence and/or cumulation manifestly excessive – Sentence not manifestly excessive – Leave to appeal refused.

Crimes Act 1958, s 197(1); Family Violence Protection Act 2008, s 125A; Bail Act 1977, s 30B.

Clarkson v The Queen (2011) 32 VR 361 ; Kalala v The Queen [2017] VSCA 223; Filiz v The Queen [2014] VSCA 212; DPP v Reynolds (a pseudonym) (2022) 71 VR 336, applied.

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Counsel
Applicant:		Mr C Hooper
Respondent:		Ms B Goding
Solicitors
Applicant:	James Dowsley & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KENNEDY JA
T FORREST JA:

The applicant pleaded guilty at the County Court at Melbourne to one charge of criminal damage, six charges of common assault, one charge of persistent contravention of a family violence intervention order (‘FVIVO’), one charge of attempting to pervert the course of justice (‘APCJ’) and the related summary offence of committing an indictable offence whilst on bail. He was sentenced on 28 November 2023 to a total effective sentence of 2 years’ imprisonment with a minimum non-parole period of 1 year.[1] Presentence detention was declared at 120 days.
[1]See DPP v Dragovic [2023] VCC 2217 (‘Reasons’).
The details of the sentence are set out in the following table.

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Criminal damage[2]	10 years’ imprisonment	1 month’s imprisonment	Nil
2	Common assault[3]	5 years’ imprisonment	16 months’ imprisonment – aggregate	Base
3	Common assault	5 years’ imprisonment
4	Common assault	5 years’ imprisonment
5	Common assault	5 years’ imprisonment
6	Common assault	5 years’ imprisonment
7	Common assault	5 years’ imprisonment
8	Persistent contravention of FVIVO[4]	5 years’ imprisonment	6 months’ imprisonment	2 months
9	Attempt to pervert the course of justice[5]	25 years’ imprisonment	14 months’ imprisonment	6 months
Related Summary Offences
8

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 Dragovic v The King

Details

AGLC: Dragovic v The King [2024] VSCA 95
Case: [2024] VSCA 95
Decision Date: 16 May 2024

CaseChat Overview and Summary

Dragovic v The King involved an appellant who was sentenced to a term of imprisonment for various criminal offences, including assault, criminal damage, and breaches of a family violence intervention order. The appellant had been on bail when he physically assaulted his intimate partner, damaged her property, and then continued to contravene a family violence intervention order by contacting her from prison. The appellant pleaded guilty to the charges and was sentenced to a total of two years imprisonment with a non-parole period of one year. The appeal was against the sentence imposed by the County Court.

The primary legal issues before the Court of Appeal were whether the aggregate sentence and the cumulation of the sentences were manifestly excessive. The appellant argued that the sentences imposed were too harsh, given his acceptance of guilt and the fact that he had no prior criminal history. The Crown submitted that the sentences were appropriate given the severity and frequency of the offences committed, particularly in light of the appellant’s persistent contravention of a family violence intervention order.

The Court of Appeal considered the principles of sentencing outlined in Clarkson v The Queen and the relevant statutory provisions under the Crimes Act 1958 and the Family Violence Protection Act 2008. The court noted that the appellant had a serious history of offending against his intimate partner and had demonstrated a lack of remorse by continuing to contravene the family violence intervention order. The Court found that the sentences were neither manifestly excessive nor disproportionate to the offending. The Court also noted that the appellant had not raised any argument in relation to the non-parole period, and therefore, no order was made in relation to that aspect of the sentence. Leave to appeal was refused.

The court’s final orders were that the appeal against sentence be dismissed, and leave to appeal be refused.

Orders