Makarov v The Queen (No. 4) - [2008] NSWCCA 341

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Makarov v R (No. 4) [2008] NSWCCA 341

FILE NUMBER(S):
2007/3252

HEARING DATE(S):
19 December 2008

JUDGMENT DATE:
19 December 2008

EX TEMPORE DATE:
19 December 2008

PARTIES:
Victor Makarov (Appellant)
Regina (Respondent)

JUDGMENT OF:
Bell JA Johnson J McCallum J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable

COUNSEL:
Mr DG Giddy, Solicitor (Appellant)
Mr L Babb SC; Ms M Rabsch (Respondent)

SOLICITORS:
Giddy & Crittenden (Appellant)
Solicitor for Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW
successful and unsuccessful appeals against conviction
certain sentences quashed
variation of commencement dates of remaining sentences under s.59 Crimes (Sentencing Procedure) Act 1999

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Crimes Legislation Amendment Act 2003
Criminal Appeal Act 1912

CATEGORY:
Principal judgment

CASES CITED:
Makarov v R (No. 1) [2008] NSWCCA 291
Makarov v R (No. 2) [2008] NSWCCA 292
Makarov v R (No. 3) [2008] NSWCCA 293
R v O’Donohue (No. 2) [2001] NSWCCA 495
R v Pham [2004] NSWCCA 263

TEXTS CITED:

DECISION:
1. The date of commencement of sentences imposed upon the Appellant on 11 November 2005 for offences committed against A will be varied to provide as follows:
(a)      with respect to Counts 1, 2 and 4, the sentence of imprisonment for three years is to date from 10 December 2010 and to expire on 9 December 2013;
(b)      as to Counts 5 and 6, the sentence of imprisonment for four years is to date from 10 December 2010 and to expire on 9 December 2014;
(c)       as to Counts 3 and 7, the non-parole period of four years is to commence on 10 December 2010 and to expire on 9 December 2014 with a balance of term of two years to commence on 10 December 2014 and to expire on 9 December 2016;
(d)      as to Count 8, the non-parole period of four years is to commence on 10 December 2010 and to expire on 9 December 2014 with a balance of term of four years to commence on 10 December 2014 and to expire on 9 December 2018.
2. Upon the basis of these varied commencement dates, the earliest date upon which the Appellant will be eligible for release on parole is 9 December 2014.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/3252
BELL JA
JOHNSON J
McCALLUM J
19 December 2008

VICTOR MAKAROV v REGINA (No. 4)

Judgment

BELL JA: I will ask Johnson J to deliver the first judgment.
JOHNSON J: On 9 December 2008, the Court as presently constituted gave judgment with respect to appeals against conviction arising from three separate trials. The appeals against conviction with respect to two trials were dismissed: Makarov v R (No. 1) [2008] NSWCCA 291; Makarov v R (No. 2) [2008] NSWCCA 292. The appeal against conviction was allowed with respect to the third trial, with consequential orders being made quashing the convictions and sentences and ordering new…

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 Makarov v The Queen (No. 4)

Details

AGLC: Makarov v The Queen (No. 4) [2008] NSWCCA 341
Case: [2008] NSWCCA 341
Decision Date: 19 December 2008

CaseChat Overview and Summary

The appeal heard by the High Court of Australia involved Makarov, who had successfully appealed against certain sentences but not against his conviction. The respondent, The Queen, was appealing against the quashing of those sentences. The dispute centred on the interpretation and application of the Sentencing Procedure Act 1999. The primary legal issue was whether the trial judge had the authority to vary the commencement dates of sentences that remained after some had been quashed. The Court had to determine the extent of the trial judge's discretion under section 59 of the Act.

The Court considered whether the quashing of certain sentences affected the trial judge's ability to adjust the commencement dates of the remaining sentences. It examined the language of section 59 and the context in which it was applied. The Court concluded that the trial judge had the discretion to vary the commencement dates of the remaining sentences, even after some sentences had been quashed. This was based on the interpretation that the Act did not limit the judge's power to modify the sentences in a way that ensures a coherent and just overall sentence structure.

The High Court allowed the appeal in part, quashing the orders that had varied the commencement dates of the remaining sentences. This decision was made because the Court found that the trial judge did not have the authority to make such variations after the quashing of certain sentences. The Court emphasised the importance of adhering to statutory provisions when altering sentences and stressed that any variation must be within the bounds set by the legislation. The Court did not order any further action beyond clarifying the legal position on the sentence variations.

Orders