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Law v Ilievski

Law v Ilievski

Case [2016] ACTSC 291 12 October 2016

Appeal

Sentencing

Dishonesty Offences

Dishonestly Obtaining Property by Deception

Possessing Stolen Property

Criminal Law

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Law v Ilievski
Citation:	[2016] ACTSC 291
Hearing Date:	25 July 2016
DecisionDate:	12 October 2016
Before:	Refshauge ACJ
Decision:	1. The appeal be upheld. 2. The convictions entered in the Magistrates Court be confirmed. 3. The sentences imposed in the Magistrates Court be set aside and in lieu the following sentences be imposed: a. For the offence of theft (CC 15/2087), William Thomas Law be sentenced to nine months imprisonment to commence on 4 February 2016. b. For the offence of dishonestly obtaining property by deception (CC15/2938), William Thomas Law be sentenced to three months imprisonment to commence on 4 September 2016. c. For the offence of possessing stolen property (CC 15/2939), William Thomas Law be sentenced to one month imprisonment to commence on 4 November 2016 and expiring on 3 December 2016. d. For the offence of dishonestly obtaining property by deception (CC 15/2976), William Thomas Law be sentenced to three months imprisonment to commence on 4 November 2016. e. For the offence of dishonestly obtaining property by deception (CC 15/2979), William Thomas Law be sentenced to two months imprisonment to commence on 4 November 2016 and expire on 3 January 2017. f. For the offence of dishonestly obtaining property by deception (CC 15/2980), William Thomas Law be sentenced to two months imprisonment to commence on 4 November 2016. g. For the offence of dishonestly obtaining property by deception (CC 15/2981), William Thomas Law be sentenced to three months imprisonment to commence on 4 November 2016. h. For the offence of dishonestly obtaining property by deception (CC 15/2995), William Thomas Law be sentenced to two months imprisonment to commence on 4 November 2016. i. For the offence of dishonestly obtaining property by deception (CC 15/2997), William Thomas Law be sentenced to three months imprisonment to commence on 4 December 2016. j. For the offence of dishonestly obtaining property by deception (CC 15/2998), William Thomas Law be sentenced to three months imprisonment to commence on 4 January 2017. k. For the offence of dishonestly obtaining property by deception (CC 15/2999), William Thomas Law be sentenced to three months imprisonment to commence on 4 January 2017. l. For the offence of dishonestly obtaining property by deception (CC 15/3000), William Thomas Law be sentenced to two months imprisonment to commence on 4 January 2017. m. For the offence of dishonestly obtaining property by deception (CC 15/3001), William Thomas Law be sentenced to three months imprisonment to commence on 4 January 2017. n. For the offence of dishonestly obtaining property by deception (CC 15/3002), William Thomas Law be sentenced to three months imprisonment to commence on 4 February 2017. o. For the offence of dishonestly obtaining property by deception (CC 15/3003), William Thomas Law be sentenced to three months imprisonment to commence on 4 March 2017. p. For the offence of dishonestly obtaining property by deception (CC 15/3004), William Thomas Law be sentenced to three months imprisonment to commence on 4 March…

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 Law v Ilievski

Details

AGLC: Law v Ilievski [2016] ACTSC 291
Case: [2016] ACTSC 291
Decision Date: 12 October 2016

CaseChat Overview and Summary

The case of Law v Ilievski involved William Thomas Law, the appellant, appealing against the sentences imposed by the Magistrates Court. Law had pleaded guilty to multiple charges of theft, possessing stolen property, and dishonestly obtaining property by deception. The court was required to determine whether the sentence was manifestly excessive and to consider the appropriate sentence category for each offence.

The court examined the totality of the sentence and the discrepancies in sentence categories. The court found that the sentences imposed by the Magistrates Court were manifestly excessive and that there were discrepancies in the sentence categories for certain offences. The court also considered the character references submitted by Law and his guilty plea, but found that these did not warrant a significant reduction in sentence.

The appeal was upheld, and the sentences imposed by the Magistrates Court were set aside. In lieu, the court imposed new sentences for each offence, with a non-parole period of 14 months to commence on 4 February 2016 and end on 3 April 2017. The court also confirmed the convictions entered in the Magistrates Court.

Orders

Orders of the court

1. The appeal be upheld.

2. The convictions entered in the Magistrates Court be confirmed.

3. The sentences imposed in the Magistrates Court be set aside and in lieu the following sentences be imposed:

a. For the offence of theft (CC 15/2087), William Thomas Law be sentenced to nine months imprisonment to commence on 4 February 2016.

b. For the offence of dishonestly obtaining property by deception (CC15/2938), William Thomas Law be sentenced to three months imprisonment to commence on 4 September 2016.

c. For the offence of possessing stolen property (CC 15/2939), William Thomas Law be sentenced to one month imprisonment to commence on 4 November 2016 and expiring on 3 December 2016.

d. For the offence of dishonestly obtaining property by deception (CC 15/2976), William Thomas Law be sentenced to three months imprisonment to commence on 4 November 2016.

e. For the offence of dishonestly obtaining property by deception (CC 15/2979), William Thomas Law be sentenced to two months imprisonment to commence on 4 November 2016 and expire on 3 January 2017.

f. For the offence of dishonestly obtaining property by deception (CC 15/2980), William Thomas Law be sentenced to two months imprisonment to commence on 4 November 2016.

g. For the offence of dishonestly obtaining property by deception (CC 15/2981), William Thomas Law be sentenced to three months imprisonment to commence on 4 November 2016.

h. For the offence of dishonestly obtaining property by deception (CC 15/2995), William Thomas Law be sentenced to two months imprisonment to commence on 4 November 2016.

i. For the offence of dishonestly obtaining property by deception (CC 15/2997), William Thomas Law be sentenced to three months imprisonment to commence on 4 December 2016.

j. For the offence of dishonestly obtaining property by deception (CC 15/2998), William Thomas Law be sentenced to three months imprisonment to commence on 4 January 2017.

k. For the offence of dishonestly obtaining property by deception (CC 15/2999), William Thomas Law be sentenced to three months imprisonment to commence on 4 January 2017.

l. For the offence of dishonestly obtaining property by deception (CC 15/3000), William Thomas Law be sentenced to two months imprisonment to commence on 4 January 2017.

m. For the offence of dishonestly obtaining property by deception (CC 15/3001), William Thomas Law be sentenced to three months imprisonment to commence on 4 January 2017.

n. For the offence of dishonestly obtaining property by deception (CC 15/3002), William Thomas Law be sentenced to three months imprisonment to commence on 4 February 2017.

o. For the offence of dishonestly obtaining property by deception (CC 15/3003), William Thomas Law be sentenced to three months imprisonment to commence on 4 March 2017.

p. For the offence of dishonestly obtaining property by deception (CC 15/3004), William Thomas Law be sentenced to three months imprisonment to commence on 4 March 2017.

q. For the offence of dishonestly obtaining property by deception (CC 15/3193), William Thomas Law be sentenced to three months imprisonment to commence on 4 March 2017.

r. For the offence of dishonestly obtaining property by deception (CC 15/3194), William Thomas Law be sentenced to three months imprisonment to commence on 4 March 2017.

s. For the offence of dishonestly obtaining property by deception (CC 15/3196), William Thomas Law be sentenced to three months imprisonment to commence on 4 March 2017.

t. For the offence of dishonestly obtaining property by deception (CC 15/3208), William Thomas Law be sentenced to three months imprisonment to commence on 4 April 2017.

u. For the offence of dishonestly obtaining property by deception (CC 15/3485), William Thomas Law be sentenced to three months imprisonment to commence on 4 May 2017.

v. For the offence of dishonestly obtaining property by deception (CC 15/2016), William Thomas Law be sentenced to three months imprisonment to commence on 4 August 2017.

w. For the offence of dishonestly obtaining property by deception (CC 15/2017), William Thomas Law be sentenced to three months imprisonment to commence on 4 September 2017.

x. For the offence of possessing stolen property (CC 15/2018), William Thomas Law be sentenced to one month imprisonment to commence on 4 September 2017.

y. For the offence of possessing stolen property (CC 15/2019), William Thomas Law be sentenced to two months imprisonment to commence on 4 November 2017.

z. For the offence of dishonestly obtaining property by deception (CC 15/2020), William Thomas Law be sentenced to three months imprisonment to commence on 4 November 2017.

aa. For the offence of possessing stolen property (CC 15/6613), William Thomas Law be sentenced to three months imprisonment to commence on 4 February 2018.

bb. A non parole period of 14 months be set to commence on 4 February 2016 and end on 3 April 2017.

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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Citations

AGLC Citation

Law v Ilievski [2016] ACTSC 291

Most Recent Citation

Degioannis v Boxx [2017] ACTSC 7

Cases citing this decision · 13 of 13 shown

Director of Public Prosecutions v Page
[2023] ACTSC 176

…Bugmy v The Queen [2013] HCA 37; 249 CLR 571 DPP v Osmani (No 2) [2023] ACTSC 128 Law v Ilievski [2016] ACTSC 291 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 O'Brien v The Queen [2015] ACTCA 47 R v CK [2014] ACTSC 188 R v CK [2015] ACTSC 180 R v Elphick [2021] ACTSC 9 R v Hart [2016] ACTSC 16 R v Massey (No 3)…
R v West
[2023] ACTSC 412 Para 16

…e inconvenience caused by the loss of the property. Further, the consequences may be very serious, such as encouraging identity fraud: Law v Ilievski [2016] ACTSC 291 at [124]-[127], or credit cards which can then be used for financial gain well beyond the intrinsic value of the card: R v Donnelly [2021] ACTSC 336…
R v Guy
[2022] ACTSC 373 Para 21

…CTCA 6 at [3]. Factors that aggravate the offence include: (a)the value of the property: R v Pelecky (No 2) [2020] ACTSC 370 at [40], Law v Illievski [2016] ACTSC 291 at [130]; (b)whether there was planning or sophistication in the commission of the crime : R v Roux (No 2) at [84], R v Dowling (No 2) [2021] ACTSC 2…
R v Cajina
[2021] ACTSC 353 Para 1

…jina to use it and there is no evidence on which it can be found that he intended to do so, especially as he had the axe with him. See Law v Ilievski [2016] ACTSC 291 at [125].…
R v Law
[2021] ACTSC 351

…008] ACTSC 64; 1 ACTLR 299 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Hoare v The Queen (1989) 167 CLR 348 Kelly v Ashby [2015] ACTSC 346 Law v Ilievski [2016] ACTSC 291 Matruglio v Garrett [2012] ACTSC 110 Markarian v The Queen [2005] HCA 25; 228 CLR 357 R v Collins [2019] ACTSC 302 R v Crawford (No 1) [2020] ACTSC 2…
R v Dowling (No 2)
[2021] ACTSC 200 Para 1

…version of dishonest appropriation of property, like theft. The main aggravating feature of such offences is the amount involved: see Law v Ilievski [2016] ACTSC 291 at [130], R v Elphick [2021] ACTSC 9 at [116].…
R v Po'oi
[2021] ACTSC 151 Para 1

…potential for very serious consequences, including, indeed, death. Hence, the Courts view their possession and use very seriously. See Law v Ilievski [2016] ACTSC 291 at [125].…
Yeats v Winters
[2017] ACTSC 224 Para 1

…However, what I would have done is not the test. As Refshauge J states in Law v Ilievski [2016] ACTSC 291 at paragraph [13]:…
R v Forrest (No 4)
[2017] ACTSC 200 Para 1

…iple sentences: R v Ware [2016] ACTSC 264 at [139]. The apparent mathematical precision of multiple sentences is often artificial: Law v Ilievski [2016] ACTSC 291 at [1]; Bruce and Curtis v The Queen [1971] Tas SR 22 at 36.…
Islam v The Queen
[2017] ACTCA 10 Para 23

…ch claims should be dealt with. See also Celeska v Langlands [2014] ACTSC 211, at [10], and the comments of Refshauge J in Law v Ilievski [2016] ACTSC 291 at [23] to [26].…
Amos v McCarron
[2017] ACTSC 6 Para 1

…pared in this case was helpful as is often needed with multiple sentences, which by their nature can be problematic (see, for example, Law v Ilievski [2016] ACTSC 291 at [1]-[2]), nevertheless, the perception of a pre-determined outcome in the procedure actually adopted has the capacity to provide an appearance of…
Degioannis v Boxx
[2017] ACTSC 7 Para 1

…In Law v Ilievski [2016] ACTSC 291 Refshauge J dealt with the jurisdiction of the Supreme Court hearing appeals from the Magistrates Court and with the role of the court in dealing with such appeals.…
Miles v The Queen
[2016] ACTCA 54 Para 1

…of how such claims should be dealt with. See also Celeska v Langlands [2014] ACTSC 211, at [10], and the comments of Refshauge J in Law v Ilievski [2016] ACTSC 291 at [23] to [26].…

View all 13 citing cases →

Cases cited in this decision · 30 of 30 shown

R v Holder
[2019] SASCFC 73

…nally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen , quoted above (at [42]), must be accompanied by reasons. See R v Holder [1983] 3 NSWLR 245 per Street CJ (at 254). 47. Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must also…
Poole v Edwards
[2016] ACTSC 159 Para 1

…is given, as well as knowledge of the person’s criminal history and the circumstances of the offence. I have addressed some of these issues in Poole v Edwards (2016) ACTSC 159; [98]-[100].…
R v McGrail
[2016] ACTSC 142 Para 1

…He was assessed as suitable for the SMART Recovery Program and was placed on a waiting list. I have described that Program in R v McGrail [2016] ACTSC 142 at [78]-[80].…
Jovanovic v The Queen
[2015] ACTCA 29 Para 1

…y succeed “if it can be shown that no reasonable sentencing judge could have imposed such a sentence”. That was repeated in Jovanovic v The Queen [2015] ACTCA 29 at [41] . This followed what Maxwell P said in R v Abbott (2007) 170 A Crim R 306 at 309; [14].…
Allred v The Queen
[2015] ACTCA 21 Para 1

…Recently, the Court of Appeal, in Allred v The Queen [2015] ACTCA 21 at [29], set out the approach of a court to the one ground of the appeal, that the sentence was manifestly excessive as follows:…
Zotos v The Queen
[2014] VSCA 324 Para 1

…any references are false, the tender of which is likely to constitute the crime of attempting to pervert the course of justice. See Zotos v The Queen [2014] VSCA 324; Saleem v The Queen [2014] VSCA 190.…
TOPIC and DEPARTMENT OF TRANSPORT
[2014] WASAT 129 Para 1

…It is preferable, as pointed out in Topic v Department of Transport [2014] WASAT 129 at [57], though in a different context, that a reference should preferably show that the author is able to describe the person “warts and all”. This, of course, requires that the author preferably sets out the circumstances under w…
Smorhun v Devine
[2014] ACTSC 208 Para 1

…It is, important, however, that the author gives the context in which he or she is giving the reference. See Smorhun v Devine [2014] ACTSC 208 at [53]. It is important, too, that the author sets out the basis on which the assessment of character it contains is made, else it may be given little weight. See Carter v…
Saleem v The Queen
[2014] VSCA 190 Para 1

…of which is likely to constitute the crime of attempting to pervert the course of justice. See Zotos v The Queen [2014] VSCA 324; Saleem v The Queen [2014] VSCA 190.…
R v Hutchinson
[2014] ACTCA 29 Para 1

…I also have regard to R v Hutchinson [2014] ACTCA 29, where the respondent had a criminal history somewhat worse than Mr Law’s record and was also found to have poor prospects of rehabilitation.…
Celeska v Langlands
[2014] ACTSC 211 Para 1

…I would adopt with respect the criticism of the formulation in Abbott made by Penfold J in Celeska v Langlands [2014] ACTSC 211 at [10] and, like her Honour, follow the High Court rather than Abbott .…
Carter and Nussbaum and Ors (No 2)
[2013] FamCA 1014 Para 1

…author sets out the basis on which the assessment of character it contains is made, else it may be given little weight. See Carter v Nussbaum (No 2) [2013] FamCA 1014 at [6].…
Dudzik v The State of Western Australia
[2012] WASCA 195 Para 1

…desirable as a way of presenting helpful and appropriate evidence in an efficient and inexpensive way. As Mazza JA said in Dudzik v Western Australia [2012] WASCA 195 at [35]-[36], the assumption from the tender is that they are genuine. It is surprising how many references are false, the tender of which is likely…
Balthazaar v The Queen
[2012] ACTCA 26 Para 1

…The respondent cited what the Court of Appeal had said in Balthazar v The Queen [2012] ACTCA 26 at [61], that an argument of manifest excess will only succeed “if it can be shown that no reasonable sentencing judge could have imposed such a sentence”. That was repeated in Jovanovic v The Queen [2015] ACTCA 29 at […
Rees v The Queen
[2012] ACTCA 6 Para 1

…I note that in Rees v The Queen [2012] ACTCA 6, the Court considered that the value of property misappropriated was relevant to sentence after the “underlying criminality” was taken into account. It is also relevant to sentencing for such offences whether the property stolen dishonestly obtained or unlawfully pos…
Hogan v Hinch
[2011] HCA 4 Para 1

…a factor, that point had passed and protection of the community was paramount. It may be noted in passing that, as French CJ said in Hogan v Hinch (2011) 243 CLR 506 at 536-7; [32], the best protection to the community is rehabilitation. It is not really appropriate to use “protection of the community” as a kind of…
Hanks v The Queen
[2011] VSCA 7 Para 1

…It is also worth noting that the excess of the sentence must be manifestly excessive and not merely arguably excessive. See Hanks v The Queen [2011] VSCA 7 at [22].…
Cooper v Corvisy (No 2)
[2010] ACTSC 166 Para 1

…I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151, the principles applicable to appeals against sentences imposed in the Magistrates Court. They may be summarised as follows.…
R v Thorn
[2010] ACTCA 10 Para 33

…See also R v Thorn [2010] ACTCA 10 (at [33]). 33.As was said by Hunt CJ at CL in R v Ellis (1993) 68 A Crim R 449 (at 461): What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particu…
R v Ashman
[2010] ACTSC 45 Para 1

…merely the result of self-report by Mr Law. It also means that he alone is not necessarily responsible for any errors of fact in it. See R v Ashman [2010] ACTSC 45 at [30].…
Hawkins v Hawkins
[2009] ACTSC 148 Para 32

…ry the task faced by an appellant seeking to show that a sentence is manifestly inadequate, or excessive. The court said (at [32] to [35]): 32.In Hawkins v Hawkins (2009) 3 ACTLR 210, Refshauge J said (at 219 [46] to [47]): 46.The determination of whether a sentence is manifestly excessive (or inadequate) is not an easy ta…
The Queen v Morse
[2009] NZCA 51

…34.It is helpful also to refer to what King CJ (with whom White and Mohr JJ agreed) said in R v Morse (1979) 23 SASR 98 (at 99): To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily…
Rama v The Queen
[2006] ACTCA 25

…an be achieved, for example, where a court of criminal appeal has set out a range or tariff for a particular offence or where, as in Rama v The Queen [2006] ACTCA 25, a conspectus of comparable sentences, identifying relevant characteristics, is produced to the court. Neither party proceeded in either way in this…
Johnson v The Queen
[2004] HCA 15 Para 1

…inconsistent with the important principle of totality as explained in Mill v The Queen (1988) 166 CLR 59 at 63, as pointed out in Johnson v The Queen (2004) 205 ALR 346 at 356; [26].…
Wong v The Queen
[2001] HCA 64 Para 1

…These decisions, while, of course, not constituting any kind of precedent ( Wong v The Queen (2001) 207 CLR 584), are useful to assess whether my view of manifest excess is correct. I am satisfied that it is and the appeal must be upheld.…
Pearce v The Queen
[1998] HCA 57 Para 1

…tive approach that might gain the same outcome but without achieving the objectives of sentencing as outlined in decisions such as Pearce v The Queen (1998) 194 CLR 610 at 624; [48].…
Mill v The Queen
[1988] HCA 70 Para 1

…Pearce v The Queen is not inconsistent with the important principle of totality as explained in Mill v The Queen (1988) 166 CLR 59 at 63, as pointed out in Johnson v The Queen (2004) 205 ALR 346 at 356; [26].…
R v De Simoni
[1981] HCA 31 Para 1

…obtaining property by deception. To punish Mr Law for that would breach the principles set out in Pearce v The Queen at 615; [12], and R v De Simoni (1981) 147 CLR 383.…
House v R
[1936] HCA 40 Para 1

…The reference to “no reasonable sentencing judge” does not seem to me to be consistent with House v The King (1936) 55 CLR 499 at 505, where the Court referred to the sentence or outcome being unreasonable and not the judicial officer. I see no reason why the formulation mandated by the High Court should not be pref…
House v The King
63 WN 176 Para 1

…The reference to “no reasonable sentencing judge” does not seem to me to be consistent with House v The King (1936) 55 CLR 499 at 505, where the Court referred to the sentence or outcome being unreasonable and not the judicial officer. I see no reason why the formulation mandated by the High Court should not be preferred…

Legislation cited in this decision · 2

Crimes (Sentencing) Act 2005 (ACT)
33 2 mentions (from Para 1)
Magistrates Court Act 1930 (ACT)
216 2 mentions (from Para 1)