MAXWELL P, NETTLE, NEAVE, REDLICH and WEINBERG JJA
WHERE HELD
MELBOURNE
DATE OF HEARING
28 October 2009
DATE OF ORDERS
30 October 2009
DATE OF JUDGMENT
5 May 2010
MEDIUM NEUTRAL CITATION
[2010] VSCA 105
JUDGMENTS APPEALED FROM
R v Markovic (Unreported, County Court of Victoria, Judge Ross, 22 July 2009); R v Pantelic (Unreported, County Court of Victoria, Judge Lacava, 19 May 2009)
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CRIMINAL LAW – Sentencing – Imprisonment – Hardship caused to family members and other dependants – Whether third party hardship attracts exercise of mercy – ‘Exceptional circumstances’ test explained – Third party hardship irrelevant unless circumstances exceptional – No ‘residual’ discretion to exercise mercy where circumstances not exceptional – Same test at common law and under Crimes Act (Cth) s 16A(2)(p) – Offender’s anguish because of family hardship distinguished.
CRIMINAL LAW – Appeal – Sentence – Dishonesty offences – Family hardship – Whether reasonably open to conclude that circumstances not exceptional – Whether sentence manifestly excessive – Leave to appeal refused.
CRIMINAL LAW – Appeal – Sentence – Child pornography – Accessing, transmitting, making available – Two years’ imprisonment – Release on recognisance after 12 months – Family hardship – Whether circumstances exceptional – Whether sentence manifestly excessive – Leave to appeal refused.
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APPEARANCES:
COUNSEL
SOLICITORS
For the first Applicant
Mr O P Holdenson QC
Chiodo & Madafferi Solicitors
For the first Respondent
Mr D A Trapnell SC
Mr C Hyland, Solicitor for Public Prosecutions
For the second Applicant
Mr C Boyce
Stephen Andrianakis & Associates
For the second Respondent
Mr D Gurvich
Commonwealth DPP
MAXWELL P NETTLE JA NEAVE JA REDLICH JA
WEINBERG JA:
PART I
Family hardship and the exercise of mercy
There must always be a place in sentencing for the exercise of mercy ‘where a judge’s sympathies are reasonably excited by the circumstances of the case’.[1] This is a proposition of long standing and high authority, repeatedly affirmed in this Court.[2]
[2]Cobiac v Liddy (1969) 119 CLR 257, 269; R v Kane [1974] VR 759, 766; R v Clarke [1996] 2 VR 520, 523 (Charles JA, with whom Winneke P and Hayne JA agreed); Director of Public Prosecutions (Cth)v Carter [1998] 1 VR 601, 607 (Winneke P); R v Miceli [1998] 4 VR 588, 592 (Tadgell JA), 594 (Charles JA). For a recent example, see DPP v Najjar [2009] VSCA 246, [11].
The issue raised by these applications concerns the circumstances in which an offender can legitimately seek an exercise of mercy on the ground that his/her imprisonment is likely to cause hardship to members of his/her immediate family or other dependants. (In these reasons we will refer to third party hardship of this kind as ‘family hardship’.)
It has…
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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AGLC
Markovic v The Queen [2010] VSCA 105
Case
[2010] VSCA 105
Decision Date
CaseChat Overview and Summary
The case of Markovic v The Queen involved the defendant appealing against his sentence for offences related to child pornography, including accessing, transmitting, and making available such material. The sentence imposed was two years' imprisonment, with the defendant being released on recognisance after serving 12 months. The appeal focused on whether the sentence was manifestly excessive and whether the circumstances were exceptional enough to warrant a reduction due to the hardship experienced by the defendant's family members and other dependants.
The primary legal issue before the court was whether the hardship caused to the defendant's family constituted 'exceptional circumstances' under the law, which would justify a departure from the usual sentencing principles. The court had to consider whether the third-party hardship was relevant to the exercise of mercy and whether there was a 'residual' discretion to consider such factors where the circumstances were not deemed exceptional. The court also needed to determine if the test for exceptional circumstances at common law was different from that under the Crimes Act (Cth) s 16A(2)(p).
The court found that while the hardship experienced by the defendant's family was unfortunate, it did not meet the threshold of 'exceptional circumstances'. The court clarified that third-party hardship is irrelevant unless the circumstances are truly exceptional. There is no residual discretion to exercise mercy in cases where the circumstances are not exceptional. The court distinguished between the defendant's personal anguish due to family hardship and the need for a legal determination of exceptional circumstances. The appeal was dismissed, and leave to appeal was refused, as the sentence was not found to be manifestly excessive.
The final orders of the court were to dismiss the appeal and refuse leave to appeal, upholding the original sentence. The court's decision reinforced the principle that the 'exceptional circumstances' test is stringent and does not permit broad discretion in sentencing based on third-party hardship unless the circumstances are truly exceptional.