Mirojub LUKENIC v The Queen

[2008] NSWCCA 250

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Mirojub LUKENIC v R [2008] NSWCCA 250

FILE NUMBER(S):
2007/5122

HEARING DATE(S):
28 October 2008

EX TEMPORE DATE:
28 October 2008

PARTIES:
Mirojub LUKENIC (Applicant)
REGINA (Crown)

JUDGMENT OF:
McClellan CJ at CL Simpson J McCallum J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
06/11/0471

LOWER COURT JUDICIAL OFFICER:
Puckeridge DCJ

LOWER COURT DATE OF DECISION:
10 August 2007

COUNSEL:
MP Dennis (Applicant)
G Rowling (Crown)

SOLICITORS:
S O'Connor (Legal Aid Commission)
S Kavanagh (Solicitor for Public Prosecutions)

CATCHWORDS:
CRIMINAL LAW
application for leave to appeal against severity of sentence
pleas of guilty
multiple offences
receiving stolen property
disposing of stolen property
possession of stolen property
failure to give proper allowance for total pre-sentence custody
appeal allowed
commencement dates adjusted

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

CATEGORY:
Principal judgment

CASES CITED:
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
McCabe v R [2006] NSWCCA 220; 164 A Crim R 344

TEXTS CITED:

DECISION:
1.  Leave to appeal granted;
2.  Appeal allowed, sentences quashed and in lieu thereof the following sentences imposed:
Count 1:  imprisonment for a fixed term of 1 year and 9 months, commencing on 26 April 2007 and expiring on 25 January 2009;
Counts 2, 3 & 4:  imprisonment made up of a non-parole period of 1 year and 4 months, commencing 26 July 2007 and expiring on 25 November 2008 with a balance of term of 1 year and 2 months expiring on 25 January 2010;
Count 5:  imprisonment made up of a non-parole period of 1 year and 4 months, commencing on 26 September 2007 and expiring on 25 Janaury 2009 with a balance of term of 1 year and 2 months expiring 25 March 2010.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/5122

McCLELLAN CJ at CL
SIMPSON J
McCALLUM J

Tuesday 28 October 2008

Mirojub LUKENIC v R

Judgment

1. SIMPSON J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court on 10 August 2007 by Puckeridge DCJ, following his pleas of guilty to a series of charges on an indictment. The applicant entered pleas of guilty to 3 counts of receiving stolen property, 1 count of disposing of stolen property and 1 of possession of property stolen outside NSW. In addition, he asked, pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”) that an additional 3 counts of the same kind be taken into account, together with an offence of aid and abet having custody of a false instrument (a driver’s licence).

2. On the first count Puckeridge DCJ imposed a fixed term of imprisonment of 1 year and 9 months, commencing on 10 May 2007 and expiring on 9 February 2009.  On each of the second, third and fourth counts his Honour imposed sentences of 2 years and 6 months, made up of a non-parole period of 1 year and 4 months, commencing on 10 August 2007 and expiring on 9 December 2008, with a balance of term of 1 year and 2 months, expiring on 9 February 2010.  On the fifth count he imposed an identical sentence, but with a commencing date of 10 October 2007;  the non-parole period in respect of that sentence therefore expires on 9 February 2009 and the balance of term on 9 April 2010.

3. The overall term of imprisonment to be served by the applicant is a head sentence of 2 years and 11 months, made up of a non-parole period of 1 year and 9 months with a balance of term of 1 year and 2 months.

4. In sentencing as he did his Honour found special circumstances pursuant to s 44(2) of the Sentencing Procedure Act and varied the ratio between the head sentence and the non-parole period.

   The facts

5. Since the ground on which the application for leave to appeal is based is extremely narrow, it is not necessary to go into extensive detail about the facts of each offence.  The facts disclose that the applicant was the principal of a criminal enterprise which dealt in stolen property.  The stolen property included jewellery and other items the proceeds of burglaries and thefts from retail stores.  A co-accused was found to be in possession of a false driver’s licence.  The enterprise was centred upon a coffee shop of which the applicant was the proprietor.

   Subjective circumstances

6. The applicant did not give evidence in the sentencing proceedings.  There was before Puckeridge DCJ a pre-sentence report.  This showed that the applicant was born in Serbia in March 1962 and migrated to Australia in 1992.  He has taken out Australian citizenship.  He had some criminal record including, relevantly, offences of dishonesty such as having unlawfully obtained goods in custody and larceny.  He has two children aged 19 and 16 from a first marriage, and three step children with his current wife, who lives in Serbia.  He has been trying to arrange for their migration to Australia.

7. The applicant was arrested on 4 July 2005.  He was released on bail on 18 October 2005.  He therefore spent 3 months and 14 days in custody.  This was entirely referable to the present offences.

8. It was therefore put to his Honour that the sentences should be backdated to take account of the whole of that period.

9. The sole ground of the application is that the sentencing judge erred in failing to give proper allowance for the applicant’s pre-sentence custody.

10. In fact, it appears that his Honour accepted the submission in principle.  However, what he said was that the applicant had been in custody “for some 3 months or thereabouts before bail was granted”.  He therefore backdated the earliest of the sentences to commence on 10 May 2007.  It is now put that the applicant was entitled to an additional 14 days’ credit to take account of the entire period of pre-sentence custody.

11. The Crown did not accept that the applicant is entitled to any further backdating of the sentences.  On behalf of the Crown it was argued that the sentences imposed are, in any event, unduly lenient, and reflected error in the application of the principles stated in Pearce v The Queen [1998] HCA 57; 194 CLR 610.

12. It also argued that the applicant had not shown that lesser sentences are warranted in law and should have been imposed: see s 6(3) of the Criminal Appeal Act 1912; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704.

13. On the other hand, the applicant cited the decision of this Court in McCabe v R [2006] NSWCCA 220; 164 A Crim R 344. That decision, while not laying down any binding principle, did accept, for that case, the proposition that the applicant was entitled to credit for the whole of the period of pre-sentence custody.

14. I can see no reason not to follow the course taken in that case.

15. I propose that the application be granted, and the appeal allowed, to the extent that the commencement date of the sentences imposed in respect of counts 1 to 4 be adjusted by commencing on 26 April 2007.

16. I therefore propose the following orders:

    (1)  leave to appeal granted;

    (2)  appeal allowed, sentences quashed and in lieu thereof the following sentences be imposed:

    count 1:  imprisonment for a fixed term of 1 year and 9 months, commencing on 26 April 2007 and expiring on 25 January 2009;

    counts 2, 3 & 4:  imprisonment made up of a non-parole period of 1 year and 4 months, commencing 26 July 2007 and expiring on 25 November 2008 with a balance of term of 1 year and 2 months expiring on 25 January 2010;

    count 5:  imprisonment made up of a non-parole period of 1 year and 4 months, commencing on 26 September 2007 and expiring on 25 January 2009 with a balance of term of 1 year and 2 months expiring 25 March 2010.

17. McCLELLAN CJ at CL:  I agree with Simpson J.

18. McCALLUM J:  I agree with Simpson J.

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LAST UPDATED:
28 October 2008