Mrgic v Judges - [2021] TASSC 14

[2021] TASSC 14

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Mrgic v Judges [2021] TASSC 14
PARTIES:	MRGIC, Nemanja
v
JUDGES, Russell
FILE NO:	318/2021
DELIVERED ON:	14 April 2021
DELIVERED AT:	Burnie
HEARING DATE:	13 April 2021
JUDGMENT OF:	Pearce J
CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Plea of guilty to three counts of common assault – Serious public violence against strangers – Applicant with no prior convictions for violence – Sentence of imprisonment for 12 weeks with half suspended not manifestly excessive.

Aust Dig Magistrates [1349]

Criminal Law – Sentence – Sentencing procedure – Approach to sentencing process – Procedural fairness – Obligation of court to raise important possibility of actual term of imprisonment – Obligation did not

arise in this case.

Allen v Kerr [2009] TASSC 10, 19 Tas R 132, followed.

Aust Dig Criminal Law [3306]

REPRESENTATION:

Counsel:

Appellant: J Ker
Respondent: J Farmer

Solicitors:

Appellant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions

Judgment Number:	[2021] TASSC 14
Number of paragraphs:	28

Serial No 14/2021 File No 318/2021

NEMANJA MRGIC v SENIOR SERGEANT RUSSELL JUDGES

REASONS FOR JUDGMENT

PEARCE J
14 April 2021

1 By this motion the applicant seeks to review a sentence imposed by a magistrate, Ms L Topfer, on 12 February 2021. The applicant pleaded guilty to three counts of common assault. Her Honour sentenced the applicant to a term of imprisonment of 12 weeks from the day of sentence, six weeks of which was conditionally suspended for two years. One of the conditions of the order suspending part of the sentence was that the applicant submit to the supervision of a probation officer for 12 months from his release. There are three grounds of the motion:

 Ground 1 asserts that the learned magistrate erred in fact and in law by failing to have regard in
mitigation to the pleas of guilty.
 Ground 2 asserts that the learned magistrate erred in law in imposing a term of imprisonment to be
served, without having previously identified that this course was contemplated.
 Ground 3 asserts that the learned magistrate erred in imposing a sentence that was manifestly
excessive in all the circumstances of the case.
2 For the following reasons, none of the grounds of the motion are made out.

The circumstances of the offences

3 Just after midnight on 1 January 2020 a number of persons, including Dean Martin, his wife Nicola Martin, and Gabby Cotter, were waiting for a bus in central Burnie. They had just attended a public social event for New Year's Eve. The applicant was there with another man I will refer to as Mr K. The applicant and Mr K became involved in an "altercation" with another person nearby. When Mr Martin stepped forward to check on the welfare of that person, he was set upon by the two men. They pushed him against a…

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 Mrgic v Judges

Details

AGLC: Mrgic v Judges [2021] TASSC 14
Case: [2021] TASSC 14
Decision Date: 14 April 2021

CaseChat Overview and Summary

The case of Mrgic v Judges involved an appeal by the applicant against his conviction and sentence for three counts of common assault. The applicant had pleaded guilty to the charges, which stemmed from incidents of serious public violence against strangers. The original sentencing decision was made by a magistrate in Tasmania. The applicant sought a review of the sentence, arguing that it was manifestly excessive given his lack of prior convictions for violence.

The primary legal issue before the court was whether the sentence imposed by the magistrate was manifestly excessive. The court had to consider the nature of the offences, the circumstances surrounding them, and the applicant's background. The applicant argued that, given his lack of a criminal history, a sentence of imprisonment for 12 weeks with half suspended was disproportionate. The court was required to assess whether the sentence was within the range of reasonable outcomes and whether it was appropriate in light of the relevant sentencing principles.

The court found that the sentence was not manifestly excessive. It considered the seriousness of the offences, which involved significant public violence against strangers. The court also noted that the applicant had shown remorse and there was no evidence of any prior violent conduct. The court concluded that the sentence was within the range of reasonable outcomes and did not exceed what was appropriate for the gravity of the offences and the circumstances of the case. The court dismissed the application for review, upholding the original sentence.

The final orders of the court were that the application for review be dismissed, and the original sentence of imprisonment for 12 weeks with half suspended be upheld.

Orders