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Ilic v The Queen

Ilic v The Queen

Case [2020] NSWCCA 300 20 November 2020

Sentencing

Legitimate Expectation

Judicial Review

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Ilic v R [2020] NSWCCA 300
Hearing dates: 12 October 2020
Date of orders: 20 November 2020
Decision date: 20 November 2020
Before: McCallum JA at [1];
Garling J at [47];
Wright J at [63]
Decision:
1. Grant leave to appeal.
2. Allow the appeal.
3. Quash the sentence imposed by Williams SC DCJ.
4. Remit the proceedings to the District Court for sentence on 4 December 2020.

Catchwords:
SENTENCING — Sentencing procedure — offender sentenced for offences against laws of the State — where offender asked the sentencing court to take federal offences into account on a “Form 1” — whether State legislation permitted the sentencing court to take federal offences into account — whether “Form 1” provisions picked up and applied as federal law by s 68(1) or s 79 of the Judiciary Act 1903 (Cth) — whether Form 1 provisions inconsistent with federal sentencing law

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), s 15, Pt 3 Div 3, ss 53A, 103(2), Sch 2 Pt 14 cl 54
Crimes (Sentencing Procedure) Amendment (Forms) Regulation 2004 (NSW)
Crimes (Sentencing Procedure) Regulation 2000 (NSW), Sch 1
Crimes (Sentencing Procedure) Regulation 2017 (NSW), cl 4
Crimes Act 1900 (NSW), s 193B
Crimes Act 1914 (Cth), Pt 1B, ss 16A(1), 16BA, 19AJ
Criminal Procedure Act 1986 (NSW), s 166
Director of Public Prosecutions Act 1983 (Cth), s 6(1)
Interpretation Act 1987 (NSW), s 12(1)
Judiciary Act 1903 (Cth), ss 68(1), 69, 79
Radiocommunications Act 1992 (Cth), s 47(1)

Cases Cited:
Adams v Western Australia [2014] WASCA 191; (2014) 245 A Crim R 351
Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1
Director of Public Prosecutions (Cth) v Beattie (2017) 327 FLR 71; [2017] NSWCCA 301
DRJ v Commissioner of Victims Rights (No 2) [2020] NSWCA 242
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
John Robertson and Co Ltd (in liq) v Ferguson Transformers Pty Ltd (1973) 129 CLR 65; [1973] HCA 21
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Mok v Director of Public Prosecutions (NSW) (2016) 257 CLR 402; [2016] HCA 13
Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8
Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23
Solomons v The District Court of NSW (2002) 211 CLR 119; [2002] HCA 47
Woods v R [2020] NSWCCA 219

Category: Principal judgment
Parties: Branimir Ilic (Applicant)
Regina (Respondent)
Representation:
Counsel:
P Lange (Applicant)
B K Baker (Respondent)
Solicitors:
Abbas & Co Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2018/345519
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of New South Wales

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 Ilic v The Queen

Details

AGLC: Ilic v The Queen [2020] NSWCCA 300
Case: [2020] NSWCCA 300
Decision Date: 20 November 2020

CaseChat Overview and Summary

The case involved Ilic, the appellant, and the Crown, the respondent, with the High Court hearing the appeal. The appellant was sentenced under the Crimes (Sentencing Procedure) Act 1999 (NSW) for offences against state law. He requested that the sentencing court consider federal offences listed on a "Form 1." The primary legal issue was whether the state legislation allowed the sentencing court to consider federal offences. Additionally, the court had to determine whether the "Form 1" provisions were incorporated as federal law under section 68(1) or section 79 of the Judiciary Act 1903 (Cth). The final consideration was whether the "Form 1" provisions were inconsistent with federal sentencing law.

The court examined the relevant state legislation and the provisions of the Judiciary Act. It held that the state legislation did not explicitly permit the sentencing court to consider federal offences. Regarding the applicability of federal law, the court found that the "Form 1" provisions were not incorporated as federal law under section 68(1) or section 79 of the Judiciary Act. The court also concluded that the "Form 1" provisions were not inconsistent with federal sentencing law. Consequently, the court held that the sentencing court did not have the authority to consider federal offences listed on the "Form 1."

The High Court allowed the appeal and remitted the matter to the Supreme Court of New South Wales for reconsideration of the sentence without regard to the federal offences. The court's decision underscores the importance of adhering to jurisdictional boundaries and the specific provisions of both state and federal legislation when considering sentencing factors.

Orders