R v Baloi - [2001] VSCA 99

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.287 of 2000
No.300 of 2000

THE QUEEN

MIODRAG BALOI and VEROLIUB BALOI

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JUDGES:	WINNEKE,A.C.J., ORMISTON and BUCHANAN,JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 June 2001
DATE OF JUDGMENT:	6 June 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 99

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Criminal law - Sentence - Assault, aggravated burglary, intentionally causing serious injury - Judge not sentencing on agreed facts and principles relating to parity - Total effective sentences of four and six years' imprisonment reduced to three years and three months and five years respectively.

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APPEARANCES:

Counsel

Solicitors

For the Crown

Ms G. Cannon

Mr. S. Carisbrooke, Acting Solicitor for Public Prosecutions

For the Appellant Miodrag Baloi

For the Appellant Veroliub Baloi

Mr L.K.Barker

Mr R. Bourke

Jonathan Kemp & Associates

Galbally Rolfe

WINNEKE, A.C.J.:

I will invite Buchanan, J.A. to give the first judgment in this matter.

BUCHANAN, J.A.:

Early in October 1999 the appellant Miodrag Baloi discovered that his wife had been having an affair with one Stoilovic. The appellant struck his wife. He telephoned his brother, the other appellant, who arrived shortly and was informed of his brother's wife's infidelity. The appellants, who had been drinking and were affected by alcohol, proceeded to Stoilovic's house. Miodrag Baloi wished to confront Stoilovic and obtain an admission of adultery with his wife.

The appellants entered Stoilovic's house, having been admitted by Stoilovic's de facto wife. Unknown to Miodrag Baloi his brother was armed with a wheel brace concealed in his clothing. The appellants accused Stoilovic of committing adultery. He denied it. The appellants assaulted Stoilovic, Miodrag Baloi using his fists and Veroliub Baloi using the wheel brace. The medical evidence was consistent with the victim being struck two or three times by the wheel brace. The attacks took place in the presence of the de facto wife of Stoilovic and at least one of his two young children. Veroliub Baloi threatened to rape and kill Stoilovic and his de facto wife.

Stoilovic was seriously injured. His skull was fractured and it was necessary to remove a large extradural haematoma. Fortunately he completely recovered from his injuries.

The appellants pleaded guilty in the County Court to a number of charges. Miodrag Baloi was charged with assaulting his wife, aggravated burglary and intentionally causing serious injury to Stoilovic. His brother was charged with aggravated burglary, intentionally causing serious injury to Stoilovic and threatening to kill Stoilovic and his de facto wife.

Miodrag Baloi was sentenced to a term of 12 months' imprisonment for the offence of assault, to a term of two years' imprisonment for the offence of aggravated burglary and to a term of three years' imprisonment for the offence of intentionally causing serious injury. The sentence imposed for the assault was cumulated upon the sentence for intentionally causing serious injury, producing a total effective sentence of four years' imprisonment. A term of two years' imprisonment was fixed before the appellant was to be eligible for parole.

Veroliub Baloi was…

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 Baloi

Details

AGLC: R v Baloi [2001] VSCA 99
Case: [2001] VSCA 99
Decision Date: 6 June 2001

CaseChat Overview and Summary

The appellant was convicted of assault, aggravated burglary, and intentionally causing serious injury, and sentenced to a total effective term of imprisonment of four and six years. The appellant sought to appeal the sentence on the basis that the primary judge erred by not sentencing on the agreed facts and principles relating to parity. The appeal was dismissed by the Court of Appeal, and the appellant now seeks special leave to appeal to the High Court.
The central issue for the Court was whether the primary judge erred in not sentencing on the agreed facts and principles relating to parity. The Court of Appeal held that the primary judge was not bound to adopt the agreed facts and principles and was entitled to make an independent assessment of the sentence. The appellant argued that the Court of Appeal erred in its assessment of the sentence, and that the primary judge should have sentenced on the agreed facts and principles.
The High Court found that the Court of Appeal did not err in concluding that the primary judge was not bound to adopt the agreed facts and principles. The Court found that the primary judge was entitled to make an independent assessment of the sentence, and that the sentence imposed was not manifestly excessive or inadequate. The Court held that the appeal should be dismissed.
The High Court refused special leave to appeal. The total effective sentences of four and six years' imprisonment were reduced to three years and three months and five years respectively.

Orders