Jovanovic v The Queen

Case [1999] FCA 1008


Miroslav Jovanovic v The Queen [1999] FCA 1008
Criminal law - sentencing - error in sentencing
(1999) 165 ALR 6, (1999) 92 FCR 580

Jovanovic v The Queen [1999] FCA 1008

MIROSLAV JOVANOVIC v THE QUEEN

AG 116 of 1999

WILCOX, MILES and WEINBERG JJ

27 JULY 1999

CANBERRA

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.

Crimes Act 1900 (ACT), s 448

Parole Act 1976 (ACT), s 8

Drugs of Dependence Act 1989 (ACT), s 164(3)

Graziers Association of New South Wales v Australian Legion of Ex-Servicemen and Women (1949) SR(NSW) 300 at 303 referred to

Bailey v Marinoff (1971) 125 CLR 529 at 539 referred to

Re Swire (1885) 30 ChD 239 referred to

R v Cripps, Ex parte Muldoon [1984] QB 686 at 695 referred to

R v Michael [1976] 1 QB 414 referred to

R v Saville [1981] 1 QB 12 referred to

S v Recorder of Manchester [1971] AC 481 at 489 referred to

Lawrence v The King [1933] AC 699 at 708-9 referred to

Samsoondar Ramcharan v The Queen [1973] AC 414 referred to

R v Hodgkinson [1954] VLR 140 at 145-6 referred to

R v Billington [1980] VR 625 at 631 applied

R v Cross (Patrick) [1973] 1 QB 937 at 940 referred to

R v Judge Bland; ex parte Director of Public Prosecutions [1987] VR 225not followed

R v Lapa (No 2) (1995) 80 A Crim R 398 at 402, 403, 404 referred to

Griffiths v The Queen (1977) 137 CLR 293 at 301-3 referred to

R v De Zylva (1988) 38 A Crim R 207 referred to

R v Webb (1953) Cr App R 82 at 84-5 referred to

R v Fry (1954) 38 Cr App R 157 at 158 referred to

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY AG 116 OF 1998

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…

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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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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