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Manojlovic v R; R v Manojlovic

Manojlovic v R; R v Manojlovic

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Case Copied 2 December 2020 85 min read

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Manojlovic v R; R v Manojlovic [2020] NSWCCA 315
Hearing dates: 4 September 2020;
25 September 2020
Decision date: 02 December 2020
Before: Hoeben CJ at CL at [1],
Button J at [160]
N Adams J at [162]
Decision:
CONVICTION:
(1) Leave to appeal against conviction is granted.
(2) The appeal against conviction is dismissed.
SENTENCE:
(1) The appeal is allowed.
(2) The sentence imposed on the respondent by Williams SC DCJ on 9 April 2020 is quashed.
(3) In lieu thereof, the respondent is sentenced to an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of imprisonment of 5 years, 6 months to commence on 10 February 2020 with a non-parole period of 3 years to expire on 9 February 2023.
(4) Pursuant to s 53A(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the indicative sentences are:
Count 1: 20 months with a non-parole period of 12 months.
Count 2: 2 years with a non-parole period of 15 months.
Count 3: 2 years and 6 months with a non-parole period of 22 months.
Count 5: 3 years with a non-parole period of 2 years.
Count 7: 3 years and 6 months with a non-parole period of 2 years and 6 months.

Catchwords:
CRIMINAL LAW – conviction appeal – two counts of aggravated indecent assault, three counts of aggravated sexual intercourse without consent – circumstance of aggravation being “under authority” – conviction after trial by jury – victim school pupil – offender school teacher – whether verdicts of guilty were unreasonable and cannot be supported having regard to the evidence – credit and reliability of victim challenged – whether it was open to the jury to be satisfied beyond reasonable doubt that offender was guilty – leave to appeal against conviction granted – appeal against conviction dismissed – CRIMINAL LAW – appeal against sentence - Crown appeal - assessment of objective seriousness - respondent's knowledge of lack of consent - knowledge rather than recklessness - characterisation of objective seriousness as “towards the low end of the range” - whether sentence manifestly inadequate

Legislation Cited:
Crimes Act 1900 (NSW) – ss 61J(1), 61M(1), s 73(2), 578A
Criminal Appeal Act 1912 (NSW) – s 5(1)(b)
Criminal Procedure Act1986 (NSW) – s 294
Evidence Act 1995 (NSW) – s 44

Cases Cited:
Antouny v R [2020] NSWCCA 203
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54
Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49 at 300
Gibson v Regina [2019] NSWCCA 221
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Griffiths v The Queen (1977) 137 CLR…

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.

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Details

Case: [2020] NSWCCA 315
Decision Date: 02 December 2020

CaseChat Overview and Summary

The case of Manojlovic v R and R v Manojlovic involved an appeal against conviction and sentence by the respondent, Manojlovic, following his conviction for two counts of aggravated indecent assault and three counts of aggravated sexual intercourse without consent. The Court of Appeal was tasked with determining whether the verdicts of guilty were unreasonable and could not be supported given the evidence, particularly in light of challenges to the victim's credibility. Additionally, the Crown appealed against the sentence imposed on Manojlovic, arguing that the objective seriousness of the offences had been inadequately assessed and that the sentence was manifestly inadequate.

The legal issues before the court included the reliability of the victim's testimony and whether it was open to the jury to be satisfied beyond reasonable doubt that Manojlovic was guilty of the offences. The court also considered the characterisation of the objective seriousness of the offences and the appropriate sentence for the crimes committed. The court examined the evidence presented, the challenges to the victim's credibility, and the arguments regarding the adequacy of the sentence imposed.

The Court of Appeal found that the jury was open to being satisfied beyond reasonable doubt that Manojlovic was guilty of the offences, despite challenges to the victim's credibility. The court held that it was not open to them to interfere with the jury's findings as the verdicts were not unreasonable. Regarding the sentence, the court concluded that the objective seriousness of the offences was correctly assessed and that the sentence imposed was not manifestly inadequate. Consequently, the appeal against conviction was dismissed, and the appeal against sentence was also dismissed.

The final orders of the court were that the appeal against conviction was dismissed, and the appeal against sentence was dismissed. The original conviction and sentence of Manojlovic were upheld.

Orders