R v Djordjevic

The applicant, Djordjevic, appealed to the Full Court of the Supreme Court of South Australia against a sentencing judge's decision not to suspend his term of imprisonment. The appeal did not challenge the length of the head sentence or the non-parole period. The dispute arose from an incident where the applicant engaged in sexual acts with a 19-year-old female, V, after consuming alcohol at a secluded property. V subsequently reported the incident to the police, and the applicant was convicted of rape.

The primary legal issue before the Full Court was whether the sentencing judge erred in the exercise of discretion by failing to suspend the applicant's sentence of imprisonment. This involved considering whether any fresh evidence, not available at the time of sentencing, could have influenced that decision. The applicant sought to introduce a psychological report and medical reports concerning his sister's health, arguing that these would have demonstrated contrition and highlighted the adverse impact of his imprisonment on his dependants.

The Court applied the test for the reception of fresh evidence on a sentencing appeal, as established in *R v Dorning*. This test requires that the evidence could not have been obtained with reasonable diligence for use at trial, would probably have had an important influence on the result, and is apparently credible. While the Court acknowledged the sentencing judge had considered the impact of imprisonment on the applicant's mother and sister, it found that the fresh evidence, including the psychological report detailing the applicant's own history of sexual abuse, did not meet the threshold for an important influence on the sentencing discretion. The psychologist's report indicated that the applicant did not exhibit obvious psychological impairment and that his past experiences, while potentially disinhibiting, did not definitively demonstrate contrition in a way that would have altered the sentencing outcome.

Consequently, the Full Court refused permission to appeal on both grounds. The judges agreed that the sentencing judge had properly balanced the gravity of the offending against the mitigating factors, including the impact on the applicant's dependants, and found no error in the exercise of discretion. The application for the introduction of fresh evidence was also refused.