3 BARR AJ: Darko Palijan also known as David Palijan, seeks leave to appeal against sentences imposed in the District Court. He pleaded guilty in the Local Court to one charge of aggravated breaking and entering and committing a serious indictable offence namely intimidation, in circumstances of aggravation, namely that he used corporal violence on the victim. He also pleaded guilty to a charge of assault occasioning actual bodily harm.
4 The first charge was laid under s 112(2) Crimes Act 1900 and attracted a maximum penalty of imprisonment for 20 years. A standard non-parole period of 5 years applied. The maximum penalty for assault occasioning actual bodily harm was imprisonment for 5 years. There was no standard non-parole period.
5 The applicant maintained his pleas of guilty in the District Court. On 21 July 2009 Judge Knox of Queens Counsel sentenced the applicant to a non-parole period of 3 years’ imprisonment and a balance of term of 2 years. On the second count his Honour sentenced the applicant to a concurrent fixed term of 12 months’ imprisonment.
6 The applicant was a man of about 50 years of age who had had a long and troublesome history of involvement with illegal drugs and alcohol and had built up a serious record of offending, commencing in his mid teens and including a large number of offences of violence and dishonesty. He had a history of anxiety and depression under stress. He had overdosed in 1992 when he was suffering personal difficulties. He was diagnosed as suffering from depression in 1999 and was treated with drugs. Later on he began to exhibit psychotic symptoms.
7 For a period of about 4 years until February 2007 the applicant was involved in an intimate relationship with the complainant, Mrs Robinson. The relationship came to an…
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.
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Details
AGLC
Palijan v R [2010] NSWCCA 142
Case
[2010] NSWCCA 142
Decision Date
CaseChat Overview and Summary
Darko Palijan, also known as David Palijan, appealed against the sentences imposed in the District Court, where he had pleaded guilty to aggravated breaking and entering and committing a serious indictable offence of intimidation using corporal violence, as well as to a charge of assault occasioning actual bodily harm. The District Court Judge, Knox DCJ, sentenced Palijan to a non-parole period of 3 years' imprisonment and a balance of term of 2 years on the first charge, and a concurrent fixed term of 12 months' imprisonment on the second charge. Palijan sought leave to appeal against these sentences. The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. The appeal raised three grounds: whether the home of the victim was an appropriate aggravating factor, whether sufficient weight was given to Palijan’s mental condition, and whether the sentence was manifestly excessive. The Court found that the home of the victim was a proper aggravating factor, as it was entitled to take into account the forced entry into a house and the violation of the safety of that place. Regarding the mental condition, the Court found that the sentencing judge had fairly considered the applicant’s mental condition and the need to protect the public. The Court held that the sentences imposed did not fall outside the proper range of the sentencing judge’s discretion.