Jonceski v The Queen - [1991] TASSC 104

98/1991
List "A"

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Jonceski v R [1991] TASSC 104; A98/1991

PARTIES:  JONCESKI, Milan
  v
  R

FILE NO/S:  CCA 67/1991
DELIVERED ON:  13 November 1991
DELIVERED AT:  Hobart
JUDGMENT OF:  Wright and Crawford JJ

Judgment Number: A98/1991
Number of paragraphs: 17

Serial No 98/1991
List "A"
File No CCA 67/1991

MILAN JONCESKI v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

WRIGHT J
CRAWFORD J
13 November 1991

Order of the Court

Application for leave to appeal refused.

Serial No 98/1991
List "A"
File No CCA 67/1991

MILAN JONCESKI v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

WRIGHT J
13 November 1991

The applicant seeks leave to appeal against a sentence of three months' imprisonment imposed on 30 May 1991 in respect of eight counts of perjury contrary to s.94(1) of the Criminal Code. There were originally four grounds for the application but grounds 1 and 2 were abandoned. Ground 3 is in the following terms:

"THAT the sentence imposed in all the circumstances was so disparate to sentences imposed upon firstly one Stanic by Judge Underwood on 27th February, 1991 of a three months suspended sentence and secondly upon one Popovic by Judge Cox imposed on the 3rd May, 1991 in respect of counts of perjury arising out of the same acts and transactions as those alleged against the Appellant as to give rise to a justifiable sense of grievance on the Appellant's part, which offends against the appearance of justice."

Ground 4 was not abandoned, but counsel for the applicant did not support it by argument. Its terms were as follows:
"THAT in the all the circumstances the learned Trial Judge erred in not making the sentence of 3 months appealed against concurrent with the sentence of 15 months imposed upon the other inditements [sic] referred to above."

On the same day that he was sentenced to three months' imprisonment for perjury, the applicant was sentenced to fifteen months' imprisonment upon two counts of false pretences. There is no application for leave to appeal against the sentences imposed in respect of the false pretences charges.

The facts giving rise to the applicant's appearance in the Criminal Court are as follows. In July 1984 he lent his motor car to one Popovic for the purpose of driving from Hobart to Rosebery and return. Popovic paid Jonceski for the use of the car. Whilst driving alone on 7 July 1984, Popovic ran the car off the road. No other motor vehicle was involved. The car was damaged but was still driveable. Popovic returned to Hobart and the applicant, upon becoming aware of the damage to the vehicle, told Popovic that he had no insurance cover for the car. He required Popovic to pay for the cost of repairing the damage. Popovic suggested that he should arrange with his friend Stanic to claim on his insurance policy on the basis that Stanic's motor car had been involved in…

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 Jonceski v The Queen

Details

AGLC: Jonceski v The Queen [1991] TASSC 104
Case: [1991] TASSC 104
Decision Date: 13 November 1991

CaseChat Overview and Summary

In Jonceski v The Queen, the Court of Criminal Appeal of the Supreme Court of Tasmania dealt with an application for leave to appeal against the sentence of three months' imprisonment imposed on Milan Jonceski for eight counts of perjury. Jonceski argued that the sentence was disproportionately harsher compared to those given to co-defendants, Stanic and Popovic, who received suspended sentences for similar offences. The legal issues were whether the disparity in sentencing between Jonceski and his co-defendants was unjust and whether the sentences for the perjury charges should have been concurrent with those for the false pretences charges.

The court found that the disparity in sentencing was justified because Jonceski had committed additional fraud, which warranted a custodial sentence, while Stanic and Popovic did not. The judges who sentenced Stanic and Popovic chose not to impose immediate custodial sentences and instead opted for suspended sentences. The court held that the sentencing judge was correct in imposing a custodial sentence on Jonceski, given his additional fraudulent activities. Furthermore, the court rejected the argument for concurrent sentencing, stating that the perjury and false pretences charges were distinct and should not be conflated.

Ultimately, the application for leave to appeal was refused. The court concluded that the sentence imposed on Jonceski was appropriate given the totality of his criminal conduct and that there was no basis for interference by the Court of Criminal Appeal.

Orders