Karacic v The Queen - [2019] NSWCCA 195

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Karacic v R [2019] NSWCCA 195
Hearing dates: 2 August 2019
Date of orders: 19 August 2019
Decision date: 19 August 2019
Before: Basten JA at [1];
Wright J at [3];
Wilson J at [4].
Decision:
(1) Extend the time in which to bring an application for leave to appeal until 5 December 2018.
(2) Leave to appeal granted.
(3) Appeal dismissed.

Catchwords: CRIMINAL LAW – sentencing – appeal against sentence – unrepresented applicant – question of commencement date of sentence – assessment of prospects of rehabilitation – asserted manifest excess
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Kaderavek v R [2018] NSWCCA 92
R v Henry (1996) NSWLR 346
R v Qutami (2001) 127 A Crim R 369
Category: Principal judgment
Parties: Tony Karacic (applicant)
Director of Public Prosecutions (NSW) (respondent)
Representation: Applicant in person
D Patch for respondent

File Number(s): 2016/00099265
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

17 November 2017

Before:

Her Honour Judge J Girdham SC

File Number(s):

2016/00099265

Judgment

BASTEN JA: In circumstances fully recounted by Wilson J, the applicant was sentenced for two offences of armed robbery, following a trial and verdicts of guilty. While it is true that the applicant is unrepresented, the grounds of appeal simply fail to engage with the careful, well-reasoned judgment on sentence delivered by Girdham SC DCJ. As Wilson J demonstrates, there was no identifiable error in that judgment, nor was the sentence manifestly excessive.
I agree that the applicant should have an extension of time within which to seek leave to appeal. However, on its face this is a case in which leave to appeal should be refused. I am content to grant leave, but the appeal must, for the reasons given by Wilson J, be dismissed.
WRIGHT J: I agree with the orders proposed by Wilson J for the reasons that her Honour has given.
WILSON J: At the conclusion of his trial in September 2017 the applicant was found guilty by a jury of two counts contrary to s 97(2) of the Crimes Act 1900 (NSW) of robbery whilst armed with a dangerous weapon. Such an offence carries a maximum sentence of 25 years imprisonment.
On 17 November 2017 he was sentenced in the District Court by her Honour Judge Girdham SC to an aggregate term of imprisonment of six years and three months, with a non-parole period of four years and two months, pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The indicative sentence for each count was a term of 6 years imprisonment.
The applicant now seeks leave to appeal against that sentence, out of time by a number of days, and advances five proposed grounds of appeal. Those grounds, as articulated, are:

“The trial judge erred on backdating the sentence (Applicant effectively doing 4 years 10 months).

The trial…

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 Karacic v The Queen

Details

AGLC: Karacic v The Queen [2019] NSWCCA 195
Case: [2019] NSWCCA 195
Decision Date: 19 August 2019

CaseChat Overview and Summary

Karacic, the applicant, sought to appeal against his sentence imposed by the High Court of Australia. The case involved complex sentencing issues, particularly regarding the commencement date of his sentence and the assessment of his prospects for rehabilitation. The applicant, who was unrepresented, argued that the original sentence was a manifest excess, considering the circumstances and his potential for rehabilitation. The High Court was tasked with determining whether the sentence imposed was just and whether the lower court had appropriately assessed the applicant’s prospects of rehabilitation.

The primary legal issues before the court were whether the sentence was excessive in light of the applicant's prospects for rehabilitation and whether the lower court had correctly determined the commencement date of the sentence. The court had to examine the principles of sentencing in criminal cases, focusing on proportionality and the circumstances of the offence. Additionally, the court needed to consider the applicant's unrepresented status and the fairness of the sentencing process under those circumstances.

In its judgment, the High Court found that the sentencing judge had appropriately considered the applicant's prospects of rehabilitation and the principles of proportionality. The court concluded that the sentence imposed was not a manifest excess, as it was proportionate to the gravity of the offence and took into account the applicant's potential for rehabilitation. The High Court also determined that the lower court had correctly assessed the commencement date of the sentence. Consequently, the appeal was dismissed, and the original sentence was upheld. The court emphasised the importance of proportionality and the need to consider individual circumstances in sentencing.

Orders