Markovic v The Queen (No. 5) - [2023] NSWDC 278

District Court

New South Wales

Medium Neutral Citation: Markovic v R (No. 5) [2023] NSWDC 278
Hearing dates: 03 July 2023
Date of orders: 25 July 2023
Decision date: 25 July 2023
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
(1) The Community Corrections Order is revoked
(2) Sentence the offender to a fixed term of imprisonment of 6 months commencing on 8 May 2023 and to expire on 7 November 2023
(3) Any sentence that might follow the further prosecutions to which he is subject may be adapted to these dates

Catchwords:
APPEALS — Jurisdiction of appellate court — District Court
APPEALS — Leave to appeal — Leave granted to withdraw appeal
APPEALS — Nature of appeal — Functions of appellate court
APPEALS — Orders on appeal — Finality
APPEALS — Orders on appeal — Powers of appellate court
APPEALS — Procedure — Orders on appeal
APPEALS — Procedure — Record of court
SENTENCING — Appeal against sentence — Powers of court — “Sentence”

Legislation Cited:
Crimes Act 1900
Crimes (Administration of Sentences) Act 1999
Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999
Road Rules 2014

Cases Cited:
Belan v Office of the Director of Public Prosecutions (NSW) [2021] NSWCA 96
Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999
DPP (NSW) v Jones [2017] NSWCCA 164
Markovic v R (No. 1) [2022] NSWDC 353
Markovic v R (No. 2) [2022] NSWDC 354
Markovic v R (No. 3) [2022] NSWDC 675
Markovic v R (No. 4) [2022] NSWDC 742
Parker v The Director of Public Prosecutions (1992) 28 NSWLR 282
Yates v Commissioner of Corrective Services of NSW [2014] NSWSC 653

Category: Sentence
Parties: Duro George Markovic (Applicant)
Director of Public Prosecutions (NSW) (Respondent)
Representation:
Paul Bolster (Counsel for the Applicant)
Jason Rafeeq (Solicitor for the Respondent (ODPP))

File Number(s): 2020/00295833

JUDGeMENT

Introduction

Duro George Markovic, who appears by the name Duro Markovic, was called before this court upon alleged breaches of a Community Corrections Order to which he was subject commencing on 11 August 2022 after the determination of several appeals pursuant to the Crimes (Appeal and Review) Act 2001.
The proceedings against Mr Markovic in the Local Court and subsequently by way of his appeals in the District Court were extensive and protracted. I delivered judgements for each of the appeals and applications including my judgement leading to imposition of the Community Corrections Order upon which I made orders in chambers for him to appear to answer for alleged breach.

Previous Judgements

On 11 August 2022 I delivered the following judgements:

Markovic v R (No. 1) [2022] NSWDC 353 – file 2020/00337852, in respect of which I held there was no power to deal with the matter after orders by Judge Robinson on 12 October 2021.

Markovic v R (No. 2) [2022] NSWDC 354 file – 2021/00071644 in which I remitted the proceedings to the Local Court. A magistrate convicted Mr Markovic in his absence, but he did not thereafter seek annulment…

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 Markovic v The Queen (No. 5)

Details

AGLC: Markovic v The Queen (No. 5) [2023] NSWDC 278
Case: [2023] NSWDC 278
Decision Date: 25 July 2023

CaseChat Overview and Summary

Markovic appealed against his conviction and sentence in the Supreme Court of South Australia. The appeal was initially dismissed by the District Court, but Markovic sought leave to appeal to the Supreme Court, which was granted. The appeal raised questions about the jurisdiction of the appellate court, the granting of leave to appeal, and the nature and powers of appellate courts in sentencing matters. The central issue was whether the Supreme Court had the authority to adapt the sentence of imprisonment to align with potential future prosecutions.

The Supreme Court considered whether the District Court had jurisdiction to grant leave to appeal and whether the original sentence was appropriate. It was determined that the District Court had indeed erred in not granting leave to appeal, as the appeal presented significant questions of law. The Supreme Court also found that the original sentence was inadequate and that it had the power to adapt the sentence to ensure finality and fairness in the context of potential further prosecutions. The court held that it could revoke the Community Corrections Order and impose a fixed term of imprisonment, which would commence on the date of the original sentence and expire on the date of the potential future sentence.

Ultimately, the Supreme Court granted leave to appeal, revoked the Community Corrections Order, and sentenced Markovic to a fixed term of imprisonment of six months. The court also ensured that any future sentence resulting from further prosecutions could be adapted to align with these dates. This decision underscores the appellate court's role in reviewing the appropriateness of sentences and ensuring that they are adapted to the circumstances of potential future prosecutions.

Orders

Orders of the court

(1) The Community Corrections Order is revoked

(2) Sentence the offender to a fixed term of imprisonment of 6 months commencing on 8 May 2023 and to expire on 7 November 2023

(3) Any sentence that might follow the further prosecutions to which he is subject may be adapted to these dates

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Markovic v R (No. 5) [2023] NSWDC 278
Hearing dates:	03 July 2023
Date of orders:	25 July 2023
Decision date:	25 July 2023
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	(1) The Community Corrections Order is revoked (2) Sentence the offender to a fixed term of imprisonment of 6 months commencing on 8 May 2023 and to expire on 7 November 2023 (3) Any sentence that might follow the further prosecutions to which he is subject may be adapted to these dates
Catchwords:	APPEALS — Jurisdiction of appellate court — District Court APPEALS — Leave to appeal — Leave granted to withdraw appeal APPEALS — Nature of appeal — Functions of appellate court APPEALS — Orders on appeal — Finality APPEALS — Orders on appeal — Powers of appellate court APPEALS — Procedure — Orders on appeal APPEALS — Procedure — Record of court SENTENCING — Appeal against sentence — Powers of court — “Sentence”
Legislation Cited:	Crimes Act 1900 Crimes (Administration of Sentences) Act 1999 Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 Road Rules 2014
Cases Cited:	Belan v Office of the Director of Public Prosecutions (NSW) [2021] NSWCA 96 Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 DPP (NSW) v Jones [2017] NSWCCA 164 Markovic v R (No. 1) [2022] NSWDC 353 Markovic v R (No. 2) [2022] NSWDC 354 Markovic v R (No. 3) [2022] NSWDC 675 Markovic v R (No. 4) [2022] NSWDC 742 Parker v The Director of Public Prosecutions (1992) 28 NSWLR 282 Yates v Commissioner of Corrective Services of NSW [2014] NSWSC 653
Category:	Sentence
Parties:	Duro George Markovic (Applicant) Director of Public Prosecutions (NSW) (Respondent)
Representation:	Paul Bolster (Counsel for the Applicant) Jason Rafeeq (Solicitor for the Respondent (ODPP))
File Number(s):	2020/00295833