MILETIC v The Queen - [2009] NSWCCA 311

New South Wales
Court of Criminal Appeal

CITATION: MILETIC v R [2009] NSWCCA 311
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 9 December 2009

JUDGMENT DATE:
22 December 2009

JUDGMENT OF: James J at 1; Hulme J at 2; Hidden J at 34

DECISION: (i) Leave to appeal granted;
(ii) Appeal allowed;
(iii) Quash the sentences imposed on the Applicant by English DCJ on 20 February 2009;
(iv) In respect of the charge of aggravated break and enter a dwelling house with intent to commit a serious indictable offence namely intimidation with the intent to cause fear of physical harm, sentence the Applicant to imprisonment for a period of 2 years including a non-parole period of 1 year, both periods commencing on 20 February 2009;
(v) In respect of the charge of assault occasioning actual bodily harm, sentence the Applicant to imprisonment for a fixed term of 1 year commencing on 20 February 2009;
(vi) Direct release of the Applicant to parole on 20 February 2010.

PARTIES: Robert MILETIC
Regina

FILE NUMBER(S): CCA 2008/16719

COUNSEL: AJ Bellanto QC - Applicant
M Cinque - Respondent

SOLICITORS: Shaddicks Lawyers - Applicant
S Kavanagh - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/16719

LOWER COURT JUDICIAL OFFICER: English DCJ

LOWER COURT DATE OF DECISION: 20 February 2009

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2008/16719

JAMES J

RS HULME J

HIDDEN J

9 December 2009

Robert MILETIC v REGINA

Judgment

1 JAMES J: I have had the advantage of reading in draft the judgments of RS Hulme J and Hidden J. I also agree with the orders proposed by RS Hulme J and generally with his Honour’s reasons. I agree with the further remarks of Hidden J.

: On 20 February 2009 the above named Applicant for leave to appeal was sentenced by English DCJ in respect of two offences. They and the sentences imposed were:-

(i) Aggravated break and enter a dwelling house with intent to commit a serious indictable offence namely intimidation with the intent to cause fear of physical harm – imprisonment for 3 years including a non-parole period of 18 months, both periods commencing on 20 February 2009.

(ii) Assault occasioning actual bodily harm – imprisonment for a fixed term of 18 months commencing 20 February 2009.

3 The first of these offences arose pursuant to section 113(2) of the Crimes Act, 1900 and the maximum penalty prescribed for such an offence is 14 years. The second offence arose pursuant to section 59(1) of the Crimes Act 1900 and the maximum penalty prescribed for such an offence is 5 years.

4 The circumstances of the offences were as follows. The Applicant and the victim lived next door to each other. Until a month or two prior to the occurrence of the offences on 2 July 2008 the Applicant and the victim’s daughter had been in a relationship. On 2 July 2008 at about 7.20pm the Applicant attended…

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 MILETIC v The Queen

Details

AGLC: MILETIC v The Queen [2009] NSWCCA 311
Case: [2009] NSWCCA 311
Decision Date: 22 December 2009

CaseChat Overview and Summary

In the case of Robert MILETIC v The Queen, the New South Wales Court of Criminal Appeal was tasked with reviewing the sentences imposed on the applicant by English DCJ on 20 February 2009. The Applicant, Robert MILETIC, had been convicted of two offences: aggravated break and enter a dwelling house with intent to commit a serious indictable offence, namely intimidation with the intent to cause fear of physical harm, and assault occasioning actual bodily harm. The legal issues before the Court of Criminal Appeal were whether the District Court judge had given excessive weight to the concept of general deterrence and insufficient weight to the personal circumstances of the applicant, resulting in sentences that were outside the permissible range.

The Court of Criminal Appeal found that the sentence imposed on the first count, aggravated break and enter, was manifestly excessive. The Court considered numerous factors arguing for a lesser rather than a greater sentence, such as the Applicant's productive and law-abiding life, the short duration of premeditation, and his significant progress towards rehabilitation. Additionally, the Court took into account the serious economic consequences that the Applicant would likely suffer as a result of the offences and his imprisonment, which the District Court judge had seemingly given no weight.

The Court also found an error in the sentence imposed on the second count, assault occasioning actual bodily harm. The District Court judge had imposed an 18-month fixed term sentence, whereas a non-parole period followed by a balance of term would have been more appropriate. The Court of Criminal Appeal decided to re-sentence the Applicant, imposing a sentence of 2 years imprisonment, including a non-parole period of 1 year, for the first count, and a fixed term of 1 year for the second count. The Court also directed the Applicant's release to parole on 20 February 2010.

In summary, the Court of Criminal Appeal allowed the Applicant's appeal, quashed the sentences imposed by the District Court judge, and re-sentenced the Applicant with the aforementioned terms. The Court of Criminal Appeal's decision highlights the importance of balancing general deterrence and specific factors relevant to the personal circumstances of the offender in determining an appropriate sentence.

Orders