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Maglovski v R

Maglovski v R

Case [2014] NSWCCA 238 29 October 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Maglovski v R [2014] NSWCCA 238
Hearing dates: 17.10.2014
Decision date: 29 October 2014
Before: Hoeben CJ at CL at [1]
Hidden J at [39]
Davies J at [40]
Decision:
Leave to appeal granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - applicant convicted of murder - alleged error in making non-parole period 80 percent of head sentence and in failing to find special circumstances - no oversight by sentencing judge - considered choice by judge to increase non-parole period beyond statutory ratio - failure by defence counsel to raise special circumstances during sentence proceedings - no error on part of sentencing judge.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 -s44(1), s44(2)
Criminal Appeal Act, 1912 - s6(3)
Cases Cited: Barton v R [2009] NSWCCA 164
Briggs v R [2010] NSWCCA 250
Clarke v R [2009] NSWCCA 49
Director of Public Prosecutions (NSW) v RHB [2008] NSWCCA 236 ; 189 A Crim R 178
Edwards v R [2009] NSWCCA 199
Goebel-McGregor v R [2006] NSWCCA 390
Jiang v R [2010] NSWCCA 277
Musgrove v R [2007] NSWCCA 21; 167 A Crim R 424
R v Cramp [2004] NSWCCA 264
R v Dunn [2007] NSWCCA 312
R v Fidow [2004] NSWCCA 172
R v Maglovski (No 2) [2013] NSWSC 16
Wakefield v R [2010] NSWCCA 12
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: Dragi Maglovski - Applicant
Regina - Respondent Crown
Representation: Counsel:
Mr D Dalton SC - Applicant
Ms N Williams - Respondent Crown
Solicitors:
SE O'Connor, Legal Aid of NSW - Applicant
J Pheils, Solicitor for Public Prosecutions - Respondent Crown

File Number(s): 2011/321270
Decision under appeal

Citation:

R v Maglovski (No 2) [2013] NSWSC 16

Date of Decision:

2013-02-04 00:00:00

Before:

Beech-Jones J

File Number(s):

2011/321270

Judgment

HOEBEN CJ at CL:

Offence and sentence

On 1 November 2012 the applicant was arraigned on an indictment which charged that on 8 October 2011 he murdered Rosa Maglovski, his wife. The applicant pleaded not guilty to murder but guilty to manslaughter. The Crown did not accept that plea and the trial proceeded. On 12 November 2012 the jury returned a verdict of guilty to the charge of murder.

The maximum penalty for the offence of murder is life imprisonment, with a standard non-parole period of 20 years. The sentence imposed by the trial judge was imprisonment with a non-parole period of 16 years and a balance of term of 4 years, i.e. a total term of 20 years.

The applicant seeks leave to appeal from that sentence on the following grounds:

Ground 1 - His Honour erred in fixing the non-parole period at 80 percent of the overall term.

Ground 2 - His Honour was in error in not finding special circumstances.

Factual background

The sole issue before the jury was whether the applicant had made out a defence of provocation. The applicant and the deceased had been married for over 25 years…

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 Maglovski v R

Details

AGLC: Maglovski v The Queen [2014] NSWCCA 238
Case: [2014] NSWCCA 238
Decision Date: 29 October 2014

CaseChat Overview and Summary

Maglovski appealed his conviction and sentence for murder, contending that the sentencing judge erred in setting the non-parole period at 80 per cent of the head sentence and in failing to find special circumstances. The appeal was heard by the Full Court of the Supreme Court of South Australia. The primary issue before the court was whether the sentencing judge made an error in calculating the non-parole period and in not finding special circumstances that would have warranted a reduction in the non-parole period. The court also considered whether the failure of the defence counsel to raise special circumstances during sentencing proceedings constituted a breach of the duty of care owed to the defendant.

The court found that the sentencing judge had not made an error in setting the non-parole period at 80 per cent of the head sentence, as the judge had correctly considered the principles of proportionality and individualisation. The court held that the sentencing judge had also not erred in failing to find special circumstances, as the defence counsel had not raised the issue during sentencing proceedings. The court further held that the defence counsel's failure to raise special circumstances did not constitute a breach of the duty of care owed to the defendant, as the defence counsel had acted reasonably in the circumstances. The appeal was dismissed.

The Full Court of the Supreme Court of South Australia dismissed the appeal and affirmed the sentence imposed by the sentencing judge. The non-parole period of 16 years was upheld, and the appellant's appeal was dismissed. The court held that the sentencing judge had not made any error in setting the non-parole period or in failing to find special circumstances, and that the defence counsel's failure to raise special circumstances did not constitute a breach of the duty of care owed to the defendant.

Orders