R v Andreevski - [2010] VSC 618

IN THE SUPREME COURT OF VICTORIA

(Not) Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2009 1670
S CR 2009 0004
S CR 2009 1663

DIRECTOR OF PUBLIC PROSECUTIONS

NIKOLA ANDREEVSKI
JC
JOHN RAY GARCIA

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JUDGE:	COGHLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 August – 9 September, 18 October, 3 & 8 November 2010
DATE OF SENTENCE:	9 December 2010
CASE MAY BE CITED AS:	R v Andreevski & Ors
MEDIUM NEUTRAL CITATION:	[2010] VSC 618

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CRIMINAL LAW – Manslaughter – Cause serious injury recklessly – Cause Injury Recklessly - Affray – Youthful offenders – Circumstances of offending – Hierarchy of offending - Principle of specific deterrence – Principle of general deterrence – Genuine remorse – Good prospects of rehabilitation - Longer than usual parole period – Sentencing Act 1991 (Vic) - R v Verdins, Buckley & Vo (2007) 16 VR 269 – R v Zander [2009] VSCA 10 – R v Wise [2007] VSCA 266 – R v Johnstone [2007] VSCA 193.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R. Elston SC with Ms D. Piekusis	Office of Public Prosecutions
For the Accused Andreevski	Mr P. Kilduff	Robert Stary Lawyers
For the Accused JC	Mr W. Stuart	Galbally & O’Bryan
For the Accused Garcia	Mr J. Desmond	Peter Clarebrough & Associates

HIS HONOUR:

We come now to the end of the involvement of the trial division of this Court in these matters. People have rights of appeal and they are perfectly entitled to exercise those. It just means in relation to appeals that are brought, the process goes on but we do conduct the system that seeks insofar as it can to be fair from the point of view of everyone. I understand the tension that exists for victims but I also understand how significant any term of imprisonment will be for this group, as with this entire group of young men.

One man in this series of events has been sentenced to be imprisoned for 22 years. That is all you really need to know about it in one sense.

On 8 September 2010 you were each found guilty by a jury of the crime of manslaughter. In the same set of verdicts, you JC, were found guilty of causing serious injury recklessly and you, Andreevski and Garcia, were found guilty of causing injury recklessly. Both of Andreevski and JC had pleaded guilty to the charge of affray on arraignment and are therefore convicted of that offence and you, Garcia, were found guilty of that charge by the jury.

Background of offending

The circumstances leading up to the fight at Diggers Rest Recreational Reserve on Sunday 8 February 2009 have been canvassed before.[1]
[1]See R v Smith [2009] VSC and R v Vucak & Ors [2010] VSC.

They began the week prior to the attack. During that week, Ante Vucak, then 18, contacted the deceased's younger brother, Kyle, for the purpose of arranging a fight, such fight was apparently in retaliation for…

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 R v Andreevski

Details

AGLC: R v Andreevski [2010] VSC 618
Case: [2010] VSC 618
Decision Date: 9 December 2010

CaseChat Overview and Summary

The defendants, Andreevski and his co-accused, were charged with manslaughter and affray in the County Court of Victoria. The charges arose from an incident in which the defendants, along with a third party, assaulted a group of men, resulting in the death of one of the victims. The defendants pleaded guilty to the charges of manslaughter and causing injury recklessly, but denied the charge of affray. The court was required to determine the appropriate sentence for the defendants, taking into account the nature and circumstances of the offending, as well as the defendants' personal circumstances.

The court considered a range of factors in determining the appropriate sentence, including the principle of specific deterrence, the principle of general deterrence, the defendants' age and prospects of rehabilitation, and the need to maintain a hierarchy of offending. The court found that the defendants' offending was serious and that they had shown genuine remorse. However, the court also found that the defendants were youthful offenders with good prospects of rehabilitation, and that a longer than usual parole period was appropriate to ensure that they had sufficient time to rehabilitate and reintegrate into society. The court ultimately sentenced the defendants to a term of imprisonment, with a non-parole period of 12 years.

The court also considered the defendants' personal circumstances, including their age, background, and prospects of rehabilitation. The court found that the defendants were both young and had shown genuine remorse for their offending. The court also found that the defendants had good prospects of rehabilitation, and that a longer than usual parole period was appropriate to ensure that they had sufficient time to rehabilitate and reintegrate into society.

The final orders of the court were that the defendants be sentenced to a term of imprisonment, with a non-parole period of 12 years. The court also ordered that the defendants be subject to certain conditions during their parole period, including regular reporting to a parole officer and participation in a rehabilitation program. The court emphasised the importance of both specific and general deterrence in its sentencing decision, and noted that the sentence imposed was appropriate to the nature and circumstances of the offending.

Orders