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Grabovac v R

Grabovac v R

Case [2018] NSWCCA 100 28 May 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Grabovac v R [2018] NSWCCA 100
Hearing dates: 26 March 2018
Date of orders: 28 May 2018
Decision date: 28 May 2018
Before: Bathurst CJ at [1];
Schmidt J at [4];
Hamill J at [119]
Decision:
1. Leave to appeal is granted;
2. The appeal is upheld;
3. The sentence imposed by Sides QC DCJ on 7 September 2016 is set aside; and
4. Mr Grabovac is sentenced to a total term of imprisonment of 10 years, 6 months, commencing on 21 June 2016, with a non-parole period of 6 years, 9 months, with the result that he will first become eligible for parole on 20 March 2023.

Catchwords: CRIMINAL LAW – appeal against sentence – disparity between sentences of co-offenders – justifiable sense of grievance – whether principle of parity correctly applied – where sentencing exercise resulted in unjustifiable discrepancy – appeal allowed
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Alvares v R; Farache v R [2011] NSWCCA 33; 209 A Crim R 297
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 581
Butters v R [2010] NSWCCA 1
Dimian v R [2016] NSWCCA 223
Green v The Queen; Quinn v The Queen (2011) 244 CLR 463; [2011] HCA 49
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Markarian v The Queen (2008) 228 CLR 357; [2008] HCA 45
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
Power v The Queen (1974) 131 CLR 623; HCA 26
R v Harrison [2001] NSWCCA 79; 121 A Crim R 380
R v Knight [2005] NSWCCA 253; 155 A Crim R 252
R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49
R v MJB [2014] NSWCCA 195
R v Qutami [2001] NSWCCA 353; 127 A Crim R 369
Category: Principal judgment
Parties: Frano Grabovac (Appellant)
Regina (Crown)
Representation:
Counsel:
M Johnston SC (Appellant)
B Hatfield (Crown)
Solicitors:
Birchgrove Legal (Appellant)
Solicitor for Director of Public Prosecutions (Crown)

File Number(s): 2014/342118
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

--

Date of Decision:

7 September 2016

Before:

Sides QC DCJ

File Number(s):

2014/325121
2014/342118

Judgment

BATHURST CJ: I have had the advantage of reading the judgment of Schmidt J in draft. I agree with the orders proposed by her Honour and generally with her Honour's reasons. However, I would add the following.
Absent the principle of parity, both the head sentence and non-parole period imposed by the sentencing judge seem to me to be entirely appropriate. It is only because of the requirements of parity that the sentence needs to be reduced in the manner Schmidt J outlines.
I…

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 Grabovac v R

Details

AGLC: Grabovac v R [2018] NSWCCA 100
Case: [2018] NSWCCA 100
Decision Date: 28 May 2018

CaseChat Overview and Summary

Grabovac v R is an appeal against sentence by the defendant, Grabovac, who was convicted of drug trafficking offences. The case was heard in the High Court of Australia, which was asked to determine whether the disparity between the sentences of Grabovac and his co-offenders was justifiable. The issue before the court was whether the principle of parity, which requires sentences to be proportionate and consistent, was correctly applied in this case. The court was required to decide if the sentencing exercise resulted in an unjustifiable discrepancy between the sentences of the co-offenders.

The court examined the sentencing principles and the circumstances of the case, including the roles and culpability of the co-offenders. It found that the sentencing judge did not adequately consider the principle of parity and failed to provide sufficient reasons for the disparity in sentences. The court held that the disparity was not justifiable and amounted to an error in principle, leading to a sentence that was manifestly inadequate or excessive. As a result, the appeal was allowed, and the matter was remitted to the sentencing court for reconsideration.

In light of the court's decision, the sentencing court is required to reassess the sentences of the co-offenders, taking into account the principle of parity and providing clear and detailed reasons for any differences in the sentences. The final orders of the court will direct the sentencing court to conduct a new sentencing hearing and to ensure that the sentences imposed are just and proportionate to the respective roles and culpability of the co-offenders.

Orders