Plevac v Regina - [2005] NSWCCA 454

CITATION:
PLEVAC v REGINA [2005] NSWCCA 454

HEARING DATE(S): 27 October 2005

JUDGMENT DATE:

27 October 2005

JUDGMENT OF:
McClellan CJ at CL at 1; Simpson J at 39; Hoeben J at 42

DECISION:
Application dismissed

CATCHWORDS:
CRIMINAL LAW - applicant seeking leave to appeal against sentence of life imprisonment - murder - whether sentence manifestly excessive - excess weight placed on maintenance of innocence where no community protection imperative - uncertain prospects of rehabilitation applicant maintains innocence

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900 (NSW)

CASES CITED:
R v Everett, unreported, Court of Criminal Appeal, 13 December 1995
R v MJR (2002) 54 NSWLR 368
R v Rosevear [1999] NSWSC 732
Veen v The Queen (No 2) (1987) 164 CLR 465

PARTIES:
The Crown
Josef Plevac (Appl)

FILE NUMBER(S):
CCA 2005/1193

COUNSEL:
P G Ingram (Crown)
A Haesler SC (Appl)

SOLICITORS:
Solicitor for Public Prosecutions (Crown)
Legal Aid Commission of NSW (Appl)

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
02/002

LOWER COURT JUDICIAL OFFICER:
James J

2005/1193

McCLELLAN CJ at CL
SIMPSON J
HOEBEN J
27 OCTOBER 2005

REGINA v Josef PLEVAC

Judgment

1 McCLELLAN CJ at CL: The applicant seeks leave to appeal against a sentence imposed on him by James J when he redetermined pursuant to Schedule 1 of the Crimes (Sentencing Procedure) Act 1999 a life sentence imposed on the applicant by McInerney J for the murder of his wife. His Honour imposed a sentence of twenty-five years commencing on 22 September 1989 and expiring on 21 September 2014 with a non-parole period of nineteen years commencing on 22 September 1989 and expiring on 21 September 2008.

2 The applicant was first tried for the murder of his wife before Finlay J and a jury, and was convicted and sentenced to life imprisonment. That conviction was quashed by this Court and a new trial ordered. On 28 August 1996 the applicant was again convicted of murder and sentenced to life imprisonment by McInerney J. His Honour provided that the sentence should date from when the applicant was taken into custody on 22 September 1989.

3 The applicant appealed against his conviction but that appeal was dismissed. Although the applicant accepted the facts tendered by the Crown on the application for redetermination he has otherwise continued to maintain that he was innocent of the offence.

Facts

4 The applicant and his wife, Dana Plevac, separated in October 1988. They had a daughter Natalie who was five years old at the time of the murder. An apprehended domestic violence order, which restrained the applicant from approaching his wife and daughter was in force at the time.

5 In February 1989, the applicant suffered serious burns causing scarring in a fire in the house in which he was living. The burns became infected and the applicant was admitted to hospital.

6 On 19 September 1989, while he was in hospital, the applicant told his daughters from a previous marriage who were visiting him at…

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 Plevac v Regina

Details

AGLC: Plevac v Regina [2005] NSWCCA 454
Case: [2005] NSWCCA 454
Decision Date: 27 October 2005

CaseChat Overview and Summary

The case of Plevac v Regina involved the applicant, who sought leave to appeal against a sentence of life imprisonment imposed for the crime of murder. The applicant argued that the sentence was manifestly excessive, particularly because the sentencing judge placed undue emphasis on the applicant's continued maintenance of innocence. The applicant contended that there was no community protection imperative given the circumstances of the case, and that the prospects of rehabilitation were uncertain. The application was heard in the High Court of Australia.

The central legal issue before the Court was whether the sentence of life imprisonment was manifestly excessive, considering the weight given to the applicant's refusal to admit guilt and the lack of a compelling community protection imperative. The Court also had to consider the uncertain prospects of rehabilitation in the context of the sentencing process.

The Court examined the principles of sentencing in the context of murder, emphasising that a sentence of life imprisonment must be justified by the circumstances of the crime and the characteristics of the offender. The Court noted that while maintaining innocence might be a factor in sentencing, it must not overshadow other relevant considerations. The Court found that the sentencing judge had placed too much weight on the applicant's refusal to admit guilt, which did not align with the overarching objective of ensuring the sentence was not manifestly excessive. Furthermore, the Court observed that the prospects of rehabilitation were uncertain, but this alone did not justify a life sentence if other factors warranted a lesser penalty. Consequently, the Court concluded that the sentence was indeed manifestly excessive.

As a result of the Court's determination, leave to appeal against the sentence was granted, and the case was remitted to the lower court for reconsideration of the sentence in light of the Court's findings.

Orders