Police v Anton Karel Tocin - [2011] NSWLC 24

Local Court

New South Wales

Medium Neutral Citation: Police v Anton Karel TOCIN [2011] NSWLC 24
Hearing dates: 06/05/2011
Decision date: 06 May 2011
Jurisdiction: Criminal
Before: Magistrate Lerve
Decision:
On the charge of drive whilst disqualified: The offender is convicted and sentenced to a fixed term of imprisonment of eight months to commence of 5 April 2011 and to expire on 4 December 2011. The offender is disqualified from driving for three years from 29 December 2012 and any habitual offender's declaration is quashed.
On the charge of threatening to cause injury to a witness in judicial proceedings: The offender is convicted and sentenced to a non-parole period of nine months to commence on 5 September 2011 and to expire on 4 June 2012. Thereafter I specify a balance of term of fifteen months to commence on 5 June 2012 and to expire on 4 December 2010. Parole is to be unsupervised.

Catchwords: SENTENCING - drive whilst disqualified - prior record an aggravating factor - threaten to cause injury to a witness - offender on conditional liberty at time of offence - need for strong deterrent sentences for public justice offences
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Road Transport (Driver Licensing) Act 1998
Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 2 of 2002) (2002) 137 A Crim R 196
Bourke v R [2010] NSWCCA 22
Cahyadi v R [2007] NSWCCA 1
Marinellis v R [2006] NSWCCA 307
R v AD [2008] NSWCCA 289
R v Doan (2000) 50 NSWLR 115
R v Jones (unreported, NSWCCA, 30/6/94)
R v Lenard; R v Fail [2006] NSWCCA 345
R v Sutton [2004] NSWCCA 225
R v Thomson; R v Houlton (2000) 49 NSWLR 383
R v Van Rysewyk [2008] NSWCCA 130
Category: Sentence
Parties: Police
Anton Karel (the offender)
Representation: Sgt C McGoldrick, Police Prosecutor
Mr T Gallagher for the offender

File Number(s): 2010/00394904

JUDGMENT

HIS HONOUR: Anton Karel Tocin appears for sentence in respect of two charges. In chronological order of the commission of the offences they are that he on 25 November 2010 at Leeton in the State of New South Wales did drive a motor vehicle on a road or road-related area during a period of disqualification, he being a person who was disqualified from holding or obtaining a driver licence contrary to s 25A(1)(a) of the Road Transport (Driver Licensing) Act 1998; and a further charge that he on 5 April 2011 at Leeton in the State of New South Wales did threaten to cause injury to Liam Ward, on account of Anton Tocin believing the said Liam Ward may be called as a witness in judicial proceedings, contrary to s 326(2) of the Crimes Act 1900.

Pleas of guilty are entered to each of those matters at what I would regard as the first opportunity and accordingly the offender is entitled to the full twenty-five per cent discount for the utilitarian value of the…

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 Police v Anton Karel Tocin

Details

AGLC: Police v Anton Karel Tocin [2011] NSWLC 24
Case: [2011] NSWLC 24
Decision Date: 06 May 2011

CaseChat Overview and Summary

In the case of Police v Anton Karel Tocin, the offender was convicted of driving while disqualified and threatening to cause injury to a witness in judicial proceedings. The matter was heard in the relevant court, where the offender's sentencing was determined. The court was tasked with deciding the appropriate sentences for both offences, taking into account the offender's prior record, the need for a strong deterrent, and the fact that the offender was on conditional liberty at the time of the offence.

The legal issues before the court were the determination of appropriate sentences for the two separate offences, with consideration of the offender's criminal history and the necessity for a strong deterrent sentence for public justice offences. The court also needed to consider the impact of the offender's conditional liberty at the time of the offence on the sentencing decision. The court examined the principles of sentencing and the relevant legislation to ensure a just outcome.

In delivering the sentence, the court recognised the seriousness of the offences and the offender's prior record as aggravating factors. The court also considered the need for a strong deterrent sentence for public justice offences. The court ultimately determined that the appropriate sentences for the two offences were a fixed term of imprisonment for the driving while disqualified charge and a non-parole period followed by a balance of term for the threatening to cause injury charge. The court also imposed a driving disqualification and quashed any habitual offender's declaration.

The court's final orders were that the offender be convicted and sentenced to a fixed term of imprisonment of eight months for driving while disqualified, with a three-year driving disqualification. For the charge of threatening to cause injury to a witness, the offender was sentenced to a non-parole period of nine months, followed by a balance of term of fifteen months, with unsupervised parole. Any habitual offender's declaration was quashed.

Orders

Orders of the court

On the charge of drive whilst disqualified: The offender is convicted and sentenced to a fixed term of imprisonment of eight months to commence of 5 April 2011 and to expire on 4 December 2011. The offender is disqualified from driving for three years from 29 December 2012 and any habitual offender's declaration is quashed.

On the charge of threatening to cause injury to a witness in judicial proceedings: The offender is convicted and sentenced to a non-parole period of nine months to commence on 5 September 2011 and to expire on 4 June 2012. Thereafter I specify a balance of term of fifteen months to commence on 5 June 2012 and to expire on 4 December 2010. Parole is to be unsupervised.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Police v Anton Karel TOCIN [2011] NSWLC 24
Hearing dates:	06/05/2011
Decision date:	06 May 2011
Jurisdiction:	Criminal
Before:	Magistrate Lerve
Decision:	On the charge of drive whilst disqualified: The offender is convicted and sentenced to a fixed term of imprisonment of eight months to commence of 5 April 2011 and to expire on 4 December 2011. The offender is disqualified from driving for three years from 29 December 2012 and any habitual offender's declaration is quashed. On the charge of threatening to cause injury to a witness in judicial proceedings: The offender is convicted and sentenced to a non-parole period of nine months to commence on 5 September 2011 and to expire on 4 June 2012. Thereafter I specify a balance of term of fifteen months to commence on 5 June 2012 and to expire on 4 December 2010. Parole is to be unsupervised.
Catchwords:	SENTENCING - drive whilst disqualified - prior record an aggravating factor - threaten to cause injury to a witness - offender on conditional liberty at time of offence - need for strong deterrent sentences for public justice offences
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Road Transport (Driver Licensing) Act 1998
Cases Cited:	Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 2 of 2002) (2002) 137 A Crim R 196 Bourke v R [2010] NSWCCA 22 Cahyadi v R [2007] NSWCCA 1 Marinellis v R [2006] NSWCCA 307 R v AD [2008] NSWCCA 289 R v Doan (2000) 50 NSWLR 115 R v Jones (unreported, NSWCCA, 30/6/94) R v Lenard; R v Fail [2006] NSWCCA 345 R v Sutton [2004] NSWCCA 225 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Van Rysewyk [2008] NSWCCA 130
Category:	Sentence
Parties:	Police Anton Karel (the offender)
Representation:	Sgt C McGoldrick, Police Prosecutor Mr T Gallagher for the offender
File Number(s):	2010/00394904