Kajevic v Noble

Case [2021] ACTSC 67


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:  Kajevic v Noble
Citation:  [2021] ACTSC 67
Hearing Date:  22 March 2021
Decision Date:  21 April 2021
Before:  Loukas-Karlsson J
Decision:  See [47]

Catchwords: 

APPEAL – APPEAL AGAINST SENTENCE – Appeal from Magistrates Court – unauthorised possession of prohibited firearms – manifest excess – re-sentence

Legislation Cited:  Crimes (Sentence Administration) Act 2005 (ACT) s 86(1)
Crimes (Sentencing) Act 2005 (ACT) ss 12, 33(1)(za)
Crimes Act 1900 (ACT) ss 375(10) and (15), 381(1)
Firearms Act 1996 (ACT) ss 7, 42(1)(a)(iii), 43(1)(a)(iii), 249(1),
sch 1
Magistrates Court Act 1930 (ACT) Part 3.10
Cases Cited:  Balthazaar v The Queen [2012] ACTCA 26
Barbaro v The Queen [2014] HCA 2; 207 CLR 58
Cooper v Corvisy (No 2) [2010] ACTSC 166; 5 ACTLR 151
Cramp v R [2016] NSWCCA 305
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Hili v The Queen [2010] HCA 45; 242 CLR 520
KN v Frizzell [2020] ACTSC 217
Lowndes v The Queen [1999] HCA 29;195 CLR 665
Mack v R; Mack v R [2009] NSWCCA 216
Markarian v The Queen [2005] HCA 25; 228 CLR 357
R v Baker [2020] ACTSC 186
R v Folauhola [2019] ACTSC 107
R v Gibbs [2014] ACTSC 292
R v Mikac [2018] ACTSC 269
R v Mitchell [2016] ACTSC 85
R v Okwechime [2015] ACTSC 129
R v Pattman; R v Pattman [2017] ACTSC 331
R v Scheele [2015] ACTSC 75
R v Sullivan [2019] ACTSC 163
R v Zdravkovic (No 3) [2020] ACTSC 258
R v Peter [2019] ACTSC 22
R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103
Wells v Mount [2020] ACTSC 333
Walshe v The Queen [2020] ACTCA 5
Wong v The Queen [2001] HCA 64; 207 CLR 584
ZL v Corey [2020] ACTSC 143
Parties:  Milan Kajevic (Appellant)
Michael John Noble (Respondent)
Representation:  Counsel

J De Bruin (Appellant) E Wren (Respondent)

Solicitors
Legal Aid ACT (Appellant)
ACT Director of Public Prosecutions (Respondent)
File Number(s):  SCA 58 of 2020
Decision under appeal: 
Court:  Magistrates Court
Before:  Magistrate Stewart
Date of Decision:  18 December 2020
Case Title:  Michael Noble v Milan Kajevic
Citation:  [2020] ACTMC 29
LOUKAS-KARLSSON J: 
Introduction 

1.       On 18 December 2020, the appellant was sentenced by the learned Magistrate for the following offences:

(a) Unauthorised possession of prohibited firearms, contrary to s 42(1)(a)(iii) of the Firearms Act 1996 (ACT) (Firearms Act) (CC2020/13742). The maximum penalty for this offence is imprisonment for 10 years. As the appellant had elected for the offence to be disposed of summarily in the Magistrates Court pursuant to s 375(10) of the Crimes Act 1900 (ACT) (Crimes Act), the maximum penalty that could be imposed was imprisonment for 5 years (s 375(15)(a) of the Crimes Act).
(b) Possession of ammunition, contrary to s 249(1) of the Firearms Act (CC2019/8304). The maximum penalty for this offence is a fine of 10 penalty units, $1,600.
(c) Possession of offensive…

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Kajevic v Noble [2021] ACTSC 67
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[2021] ACTSC 67
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CaseChat Overview and Summary

The appellant, Milan Kajevic, appealed against the sentence imposed by the Magistrate for the offence of unauthorised possession of prohibited firearms, arguing that the sentence was manifestly excessive. The Supreme Court of the Australian Capital Territory found that the sentence was indeed manifestly excessive and allowed the appeal. The court re-sentenced the appellant to a term of 22 months imprisonment, suspended after serving 6 months, upon the appellant entering into a Good Behaviour Order for a period of 2 years. The court considered the objective seriousness of the offence, the appellant's subjective circumstances, and current sentencing practice in reaching its decision. The court found that the original sentence was more than undoubtedly stern, it was manifestly excessive, and that the appeal court would have imposed a different sentence. The court concluded that the difference between the original sentence and the re-sentence bespeaks misapplication of principle, warranting appellate intervention.

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Background

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