R v Arnoutovic - [2001] QCA 89

[2001] QCA 89

COURT OF APPEAL

McPHERSON JA
MOYNIHAN J
BYRNE J

CA No 313 of 2000

THE QUEEN

SENAD ARNOUTOVIC Applicant

BRISBANE

..DATE 12/03/2001

JUDGMENT

McPHERSON JA: I will ask Mr Justice Moynihan to give the first judgment in this matter.

MOYNIHAN J: This is an application for leave to appeal against a sentence of nine years' imprisonment with 395 days declared as time served in pre-sentence custody. The applicant was convicted of manslaughter after a trial by a jury on a count of murder.

The verdict of manslaughter is explicable in terms of the jury either not being satisfied of intent to kill or cause grievous bodily harm or provocation not having been excluded. As the sentencing Judge remarked, the distinction is of little consequence in terms of the sentencing considerations which arise.

There was no issue that the events which gave rise to the killing were instigated by the deceased man, who burst into a flat where the applicant, a woman and another man were. He was apparently intoxicated and affected by drugs and behaving in an aggressive way, making threats of physical violence and actually inflicting violence.

The events are described in detail in the reasons of the sentencing Judge and there is no need for me to go to the elaboration that is there set out. The significant fact though is that the deceased man left the flat and the yard and, as the learned sentencing Judge remarked, that is where the applicant showed a complete lack of judgment.

He picked up a large hunting knife approximately 21 centimetres long and ran out and followed the other man.

He appears for himself and he assures us that his intention was to deter the other man from returning to carry out threats which were made. Those were, of course, considerations which were before the jury in the evidence and a view of them is reflected in the verdict. There was a confrontation and it seems that a fight developed. Ultimately, the fatal wound was inflicted. The applicant then left the scene, buried the knife, disposed of his clothing and eventually giving himself up to police a day or two later.

The record of interview which was before the jury was consistent with the account of events to which I have referred. The sentencing Judge took into account the fact that the confrontation was initiated by the deceased.

The Judge proceeded on the basis that the applicant picked up the knife with the intention to scare and that he had shown remorse by ultimately turning himself in to the police in the circumstances which were revealed by the evidence, and corroborated by the record of interview. There was an issue canvassed before the sentencing Judge as to whether or not an offer of a plea of guilty to manslaughter in discharge of the indictment was relevant to the consideration of remorse. The sentencing Judge concluded that it was not to be taken adversely to the applicant…

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 Arnoutovic

Details

AGLC: R v Arnoutovic [2001] QCA 89
Case: [2001] QCA 89
Decision Date: 12/03/2001

CaseChat Overview and Summary

In the case of R v Arnoutovic, the applicant, Senad Arnoutovic, sought leave to appeal against his sentence of nine years' imprisonment with 395 days declared as time served in pre-sentence custody. Arnoutovic was convicted of manslaughter after a trial for murder, with the verdict possibly due to the jury's uncertainty regarding intent to kill or cause grievous bodily harm, or the presence of provocation. The incident leading to the manslaughter was instigated by the deceased, who entered a flat where Arnoutovic, a woman, and another man were present. The deceased was intoxicated and aggressive, making threats of violence and actually inflicting harm. After leaving the flat, Arnoutovic followed him, armed with a hunting knife, to deter him from returning. A confrontation ensued, resulting in the fatal wound. Arnoutovic then buried the knife, disposed of his clothing, and surrendered to the police.

The legal issues in the case revolved around whether the sentence imposed was within the range applicable to the circumstances and whether there was a departure from the exercise of a sound sentencing discretion. The sentencing judge took into account the deceased's initiation of the confrontation and Arnoutovic's remorse, demonstrated by his surrender to the police. The court considered the comparative sentences in similar cases, acknowledging that comparability broke down due to the unique factors in each case. The court also considered Arnoutovic's difficult childhood, recent criminal history, and significant drug problem. The sentence was deemed to be within the appropriate range, and no error was demonstrated in the application of the sentencing discretion.

The Court of Appeal, consisting of McPherson JA, Moynihan J, and Byrne J, dismissed the application for leave to appeal. Byrne J noted that while some additional allowance might have been made for the resource savings associated with the offer of a plea of guilty, the sentence was not beyond the range of a sound sentencing discretion, considering all the circumstances. The order was that the application for leave to appeal against the sentence was dismissed.

Orders