CRIMINAL LAW - appeal against sentence - whether sentencing judge functus officio after sentence pronounced and recorded on internal court documents - whether "slip-rule" applicable to allow amendment of sentence - whether sentence initially imposed capable of being revoked.
CRIMINAL LAW - whether appropriate for sentencing judge to decline to impose penalty in respect of certain counts in indictment by reason of conduct being embraced within other counts.
CRIMINAL LAW - appeal against sentence - whether sentence manifestly excessive - whether proper credit given for time spent in custody.
On Appeal from the Supreme Court of the Australian
Capital Territory
BETWEEN:
MIROSLAV JOVANOVIC
Appellant
AND:
THE QUEEN
Respondent
JUDGES:
WILCOX, MILES and WEINBERG JJ
DATE OF ORDER:
27 JULY 1999
WHERE MADE:
CANBERRA
THE COURT ORDERS THAT:
1. The appeal be allowed.
2. The sentences and orders of the Supreme Court are set aside and the appellant is sentenced to imprisonment as follows:
Count 1 - Four years to commence on 2 July 1998.
Count 2 - Three years concurrent with the first count.
Count 3 - Two and a half years cumulative on the first count.
Count 4 - Two and a half years concurrent with the third count.
Count…
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.
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Details
AGLC
Miroslav Jovanovic v The Queen [1999] FCA 1008
Criminal law - sentencing - error in sentencing
Case
[1999] FCA 1008
Decision Date
CaseChat Overview and Summary
Jovanovic appealed against his sentence in the Supreme Court, which followed his conviction on fourteen counts related to various criminal activities. The primary issue before the court was whether the sentencing judge had the authority to amend the sentence after it had been pronounced and recorded in internal court documents. Another significant issue was whether the sentencing judge was justified in not imposing a penalty on certain counts due to their overlap with other counts. The court also considered whether the sentence was manifestly excessive and whether appropriate credit had been given for the time Jovanovic had spent in custody. The court found that the sentencing judge was not functus officio and could amend the sentence, applying the slip-rule where necessary. The court determined that the sentence was initially capable of being revoked, which justified the amendment. Regarding the overlapping counts, the court found the judge's decision appropriate. Finally, the court held that the sentence was not manifestly excessive, but did find that insufficient credit had been given for the time Jovanovic had spent in custody. Consequently, the appeal was allowed, and Jovanovic was re-sentenced with specific terms for each count and a non-parole period set.
Orders
Orders of the court
1. The appeal be allowed.
2. The sentences and orders of the Supreme Court are set aside and the appellant is sentenced to imprisonment as follows:
Count 1 - Four years to commence on 2 July 1998.
Count 2 - Three years concurrent with the first count.
Count 3 - Two and a half years cumulative on the first count.
Count 4 - Two and a half years concurrent with the third count.
Count 5 - Two and a half years concurrent with the third count.
Count 6 - Two years cumulative on the third count.
Count 7 - Two years concurrent with the sixth count.
Count 8 - Two years concurrent with the sixth count.
Count 9 - Two years concurrent with the sixth count.
Count 10 - Two years concurrent with the sixth count.
Count 11 - Two years concurrent with the sixth count.
Count 12 - Two years concurrent with the sixth count.
Count 13 - Two years concurrent with the sixth count.
Count 14 - Three years concurrent with the first count.
3. A non-parole period is fixed to expire on 2 January 2004. In accordance with s 8(4)(a) of the Parole Act (ACT) that period is taken to have commenced on 9 September 1994.