Mirojub LUKENIC v The Queen

The applicant, Mirojub Lukenic, appealed against the severity of his sentence imposed by the District Court of New South Wales, seeking leave to challenge the failure to give proper allowance for the period of pre-sentence custody. Lukenic, the principal of a criminal enterprise dealing in stolen property, pleaded guilty to multiple charges including receiving, disposing of, and possessing stolen property. The court was tasked with determining whether the sentencing judge had erred in not fully accounting for the entire period of pre-sentence custody in backdating the commencement of the sentences.

The central legal issue in the appeal was whether the sentencing judge had correctly calculated the pre-sentence custody period and applied it appropriately in determining the commencement dates of the sentences. Lukenic argued that he was entitled to credit for the entire period of pre-sentence custody, while the Crown contended that the sentences were already unduly lenient and that no additional credit was warranted. The Crown further argued that the applicant had not demonstrated that lesser sentences were warranted in law, referencing relevant legal principles and precedents.

In assessing the application, the court found that the sentencing judge had indeed accepted the principle that the applicant should receive credit for the entire period of pre-sentence custody but had miscalculated the actual period, resulting in an omission of 14 days. The court acknowledged that the applicant was entitled to full credit for the pre-sentence custody and adjusted the commencement dates of the sentences accordingly. The court held that the sentences imposed, while reflecting the principle of lenity, should be backdated to properly account for the entire pre-sentence custody period.

The court granted the application for leave to appeal and adjusted the commencement dates of the sentences to reflect the full period of pre-sentence custody, ensuring that Lukenic received credit for the entire period he was in custody prior to bail being granted.