Ostojic v Threlfo - [2016] NTCA 1

Ostojic v Threlfo [2016] NTCA 1
PARTIES:OSTOJIC, Stojan

v
THRELFO, Adam Thomas

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:AP 13 of 2015 (21436774)
DELIVERED:  17 February 2016
HEARING DATES:  12 February 2016
JUDGMENT OF:  RILEY CJ, SOUTHWOOD & HILEY JJ
APPEAL FROM:  BARR J
CATCHWORDS:

CRIMINAL LAW - Elements of offence of assault - s 187(b) Criminal Code - evidence established all elements of the offence beyond reasonable doubt; the appellant intended through bodily movements to threaten to apply force to the complainant, appellant did so without the complainant’s consent, and the appellant had the present actual ability to apply the threatened force – appellant guilty of aggravated assault – appeal dismissed.
CRIMINAL LAW – Appeal against sentence – appellant contends sentence in error and manifestly excessive – fine imposed in relation to assault charge exceeded the maximum directed by statute – error not in dispute – to this limited extent, appeal allowed – conviction upheld - fresh fine imposed.
CRIMINAL LAW – Appeal against sentence – in error and manifestly excessive – serious offending and serious example of road rage – pursuant to s 8 Sentencing Act all relevant considerations taken into account - magistrate found the objective seriousness of the appellant’s crime outweighed his personal characteristics – magistrate correctly emphasised punishment, denunciation and general deterrence - save for the fine imposed by the magistrate in relation to the assault, no error shown – sentences reflect objective seriousness of offending – appeal dismissed.
Criminal Code s 31, s 187(b).
Sentencing Act s 8, s 16(2)(b).
Carnese v The Queen [2009] NTCCA 8; Hales v Adams [2005] NTSC 86; R v McInerney (1986) 42 SASR 111; Toohey v Peach [2003] NTCA 17, applied.
REPRESENTATION:
Counsel:
Appellant:P Elliott
Respondent: P Usher
Solicitors:
Appellant:Withnalls Lawyers
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Number of pages: 13

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Ostojic v Threlfo [2016] NTCA 1
No. AP 13 of 2015 (21436774)
BETWEEN:

STOJAN OSTOJIC

Appellant

AND:

ADAM THOMAS THRELFO

Respondent

CORAM: RILEY CJ, SOUTHWOOD & HILEY JJ
REASONS FOR JUDGMENT
(Delivered 17 February 2016)
THE COURT:

On 12 February 2016 we heard the appeal in this matter. At the conclusion of the hearing we dismissed the appeal save for Ground 5 which was conceded. These are our reasons.
On 2 March 2015, following a short trial in the Court of Summary Jurisdiction, the appellant was found guilty of assault upon a female. He was found not guilty of driving in a manner dangerous. At the same time he pleaded guilty to having caused damage to property. On 4 March 2015 he was convicted on each count and, in relation to the offence of causing damage to property, was sentenced to 56 hours of community work. In relation to the assault he was fined $3000.
The appellant appealed to…

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 Ostojic v Threlfo

Details

AGLC: Ostojic v Threlfo [2016] NTCA 1
Case: [2016] NTCA 1
Decision Date: 17 February 2016

CaseChat Overview and Summary

Ostojic v Threlfo involved the appellant's appeal against his conviction and sentence for aggravated assault, a case that came before the court for resolution of the legal issues surrounding the elements of the offence and the proportionality of the sentence. The appellant contested his conviction, arguing that the evidence did not substantiate the elements of the offence beyond reasonable doubt, specifically that he intended to threaten force, did so without consent, and had the ability to apply the threatened force. Additionally, the appellant argued that the sentence imposed was in error and manifestly excessive, particularly the fine imposed in relation to the assault charge, which exceeded the statutory maximum.

The court examined the legal issues to determine whether the evidence sufficiently established the elements of the offence and whether the sentence was appropriate. The court held that the evidence did indeed establish all the elements of the offence beyond reasonable doubt. The appellant's bodily movements, interpreted as a threat to apply force, were made without the complainant's consent, and the appellant had the present ability to execute the threat. Therefore, the court upheld the conviction. Regarding the sentence, the court acknowledged an error in the imposition of the fine, which exceeded the statutory maximum. However, the court found no other errors in the sentence, considering the objective seriousness of the offence and the need for punishment, denunciation, and general deterrence.

The court dismissed the appeal in respect of the conviction and the sentence, except for the fine imposed for the assault charge. In relation to the fine, the appeal was allowed to the limited extent that the fine exceeded the statutory limit, and a fresh fine was imposed. The conviction remained upheld, and the sentences were otherwise affirmed, reflecting the objective seriousness of the appellant's road rage incident.

Orders