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Kljaic v R

Kljaic v R

Case [2023] NSWCCA 225 8 September 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Kljaic v R [2023] NSWCCA 225
Hearing dates: 28 July 2023
Date of orders: 8 September 2023
Decision date: 08 September 2023
Before: Beech-Jones CJ at CL at [1]
Harrison J at [2]
Wright J at [3]
Decision:
(1) The applicant has leave to appeal.
(2) The appeal is dismissed.

Catchwords:
CRIMES – appeals – appeals against sentence – whether error because of backdating the commencement of a sentence by more than the actual time spent on remand in order to take into account conditions and occurrences while offender on remand – whether s 47(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) permits consideration of conditions experienced in pre-sentence custody as well as the period of such custody

Legislation Cited:
Crimes Act 1900 (NSW), ss 52A(4), 53
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 24, 44, 47, 53A(2), 71
Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases Cited:
Almaouie v R [2021] NSWCCA 274
Bonett v R [2013] NSWCCA 234
Gardiner v R [2018] NSWCCA 27
Hughes v R [2008] NSWCCA 48
Kaderavek v R [2018] NSWCCA 92
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
R v Campbell [1999] NSWCCA 76
R v Cartwright (1989) 17 NSWLR 243
R v Eastway (CCA, unreported, 19 May 1992)
R v English [2000] NSWCCA 245
R v McHugh (1985) 1 NSWLR 588
R v Newman, R v Simpson [2004] NSWCCA 102; 145 A Crim R 361
Reddy v R [2018] NSWCCA 212
Small v R [2018] NSWCCA 290
Wiggins v R [2010] NSWCCA 30

Category: Principal judgment
Parties: Vojislav Kljaic (Applicant)
Rex (Respondent)
Representation:
Counsel:
A Chhabra and J Fennel (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Toomey Defence Lawyers (Applicant)
Director of Public Prosecutions (NSW) Respondent)

File Number(s): 2021/00066382
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

14 April 2022

Before:

Colefax SC DCJ

File Number(s):

2021/00066382

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant pleaded guilty to two offences: furiously driving a motor vehicle causing bodily harm and aggravated dangerous driving occasioning grievous bodily harm, under ss 53 and 52A(4) of the Crimes Act 1900 (NSW), respectively. On 14 April 2022, Colefax SC DCJ imposed an aggregate sentence of imprisonment for 4 years and 6 months. The applicant had spent 199 days on remand prior to sentence. In sentencing the applicant, Colefax SC DCJ recognised that during his period on remand, the applicant sustained extra-curial punishment due to factors including Covid-19 restrictions and lockdowns. These factors were taken into account by backdating the sentence by a further 30 days. Thus, the sentence commenced 229 days prior to the date of sentence. The issues raised by the applicant’s grounds of appeal were:

(i) whether the sentencing judge erred by misapplying s 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and setting the commencement of the non-parole…

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 Kljaic v R

Details

AGLC: Kljaic v R [2023] NSWCCA 225
Case: [2023] NSWCCA 225
Decision Date: 08 September 2023

CaseChat Overview and Summary

The case of Kljaic v R involved the defendant, Kljaic, who had appealed against his sentence, arguing that the trial judge had erred by backdating the commencement of his sentence to include the time he had spent on remand. Kljaic contended that this backdating was not permissible because it did not accurately reflect the actual time spent on remand, nor did it adequately account for the conditions and occurrences during his pre-sentence custody. The appeal was heard by the New South Wales Court of Criminal Appeal, which was tasked with determining whether the trial judge's approach to backdating the sentence was lawful under section 47(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The court considered whether section 47(3) of the Act allowed for the consideration of the conditions experienced during pre-sentence custody, in addition to the period of such custody, when determining the commencement date of a sentence. The defendant argued that the Act only permitted the court to consider the actual time spent on remand, and not the conditions endured during that time. The prosecution contended that the statutory provision enabled the court to backdate the sentence to include the entire period of remand, regardless of the specific conditions experienced. The court had to interpret the relevant statutory provision to determine whether it permitted the trial judge to backdate the sentence in this manner.

The Court of Criminal Appeal concluded that section 47(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) allowed for the backdating of a sentence to include the entire period of pre-sentence custody, irrespective of the specific conditions experienced during that time. The court found that the purpose of the provision was to ensure that the defendant did not benefit from time spent on remand, and that the conditions of such custody were not a relevant consideration in determining the commencement date of the sentence. As such, the court dismissed the appeal, upholding the trial judge's approach to backdating the sentence. The court held that the trial judge's determination was not an error of law, and the sentence was therefore properly imposed.

The final orders of the Court of Criminal Appeal were that the appeal against sentence was dismissed, and the original sentence imposed by the trial judge was upheld. The court's interpretation of section 47(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) clarified that the conditions of pre-sentence custody were not to be considered when determining the commencement date of a sentence, and that the entire period of remand could be backdated. This decision provides guidance to sentencing courts in New South Wales when considering the commencement date of a sentence for defendants who have spent time on remand.

Orders