R v Gavranich [No 3] (Sentence) - [2019] NSWDC 225

District Court

New South Wales

Medium Neutral Citation: R v Gavranich [No 3] (Sentence) [2019] NSWDC 225
Hearing dates: 18 April 2019
Decision date: 18 April 2019
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of five years nine months with a non‑parole period of three years three months.

Catchwords: SENTENCING – Sentencing procedure – two offences – sentence after early guilty plea and sentence after trial – special circumstances – commencement date – accumulation and concurrence.
SENTENCING – Relevant factors on sentence – domestic violence offences and need for deterrent sentences – gaols fail as a deterrent – firearms offences – guidance from maximum penalties and standard non parole period – reasons for departure. SENTENCING – Probation and Parole – offence committed on parole – non parole period. SENTENCING – Aggravating factors – committed on parole – prior offences.
SENTENCING – Mitigating factors – young immature offender.
Legislation Cited: Crimes Act 1900
Firearms Act 1996
Cases Cited: Dunn v R (2004) 144 A Crim R 180
R v Peter Gavranich [No 2] (Verdict) [2018] NSWDC 40
R v Burton [2008] NSWCCA 128
The Queen v Killick [2016] HCA 48; (2016) 259 CLR 256
Category: Sentence
Parties: Peter Gavranich (Offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr Z Khan (for the offender)
Solicitors:
Morrisons Law (for the offender)
Ms G Steedman (Solicitor Advocate for the Director of Public Prosecutions)

File Number(s): 2017/00394008

Judgment – EX TEMPORE REVISED

At about 2.30 on Saturday 30 December 2017, Ms Dunk received a Facebook Messenger video on her telephone. The video showed a man entering a car, sitting in the driver's seat and putting a key in the ignition. The man takes a shortened bolt‑action rifle from inside his shorts. He opens the breech and with his left hand tries to place a bullet in the barrel. As he does so he says, "Do you want to fucking push me, Courtney. Right, let's go. You and your fucking smart arse dog mates fucking go. You want to fucking go, let's fucking go". While the man’s face is not shown, the tattoos on his arms are clear - it was Peter Gavranich, the offender now before the Court. Gavranich sent the video intending to intimidate Ms Dunk by threatening her with the loaded shortened firearm. He accepted his guilt in relation to these matters and that acceptance came at an early opportunity.
What happened next was put in dispute. It was subject of a judge alone trial before me that commenced on 3 December 2018 at Wollongong District Court. Evidence and submissions concluded late on 5 February 2018. I reserved overnight to consider my verdict. On 6 December 2018 I found Gavranich not guilty of a charge that he broke and entered Ms Dunk's home armed with a dangerous weapon.
I did, however, convict him of an alternative count; that he broke and entered Ms Dunk's home knowing she was there and that while he was there he intimidated her: R v Peter…

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.

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Details

Case: [2019] NSWDC 225
Decision Date: 18 April 2019

CaseChat Overview and Summary

The appellant, a repeat offender, faced sentencing for two charges: one for which he had entered an early guilty plea, and the other following a trial. The case was heard by the Supreme Court of Victoria. The court needed to decide on the appropriate sentence, taking into account the special circumstances of the case, the commencement date of the sentence, and the principles of accumulation and concurrence.

The court addressed several legal issues. It considered the relevance of the maximum penalties and standard non-parole periods for the offences, as well as the need for a deterrent sentence given the prevalence of domestic violence and firearms offences. The court also examined aggravating and mitigating factors, including the fact that the offence was committed while the appellant was on parole, his prior criminal history, and his age and immaturity.

In delivering the judgment, the court found that while the maximum penalties and standard non-parole periods provided a useful guide, there were reasons to depart from them. The court took into account the appellant's age and immaturity as mitigating factors but also considered the seriousness of the offences and the need for a deterrent sentence. The court concluded that the appropriate sentence was an aggregate term of five years and nine months, with a non-parole period of three years and three months.

The court ordered that the sentence be an aggregate term of five years and nine months with a non-parole period of three years and three months.

Orders

Orders of the court

Aggregate sentence of five years nine months with a non‑parole period of three years three months.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Gavranich [No 3] (Sentence) [2019] NSWDC 225
Hearing dates:	18 April 2019
Decision date:	18 April 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of five years nine months with a non‑parole period of three years three months.
Catchwords:	SENTENCING – Sentencing procedure – two offences – sentence after early guilty plea and sentence after trial – special circumstances – commencement date – accumulation and concurrence. SENTENCING – Relevant factors on sentence – domestic violence offences and need for deterrent sentences – gaols fail as a deterrent – firearms offences – guidance from maximum penalties and standard non parole period – reasons for departure. SENTENCING – Probation and Parole – offence committed on parole – non parole period. SENTENCING – Aggravating factors – committed on parole – prior offences. SENTENCING – Mitigating factors – young immature offender.
Legislation Cited:	Crimes Act 1900 Firearms Act 1996
Cases Cited:	Dunn v R (2004) 144 A Crim R 180 R v Peter Gavranich [No 2] (Verdict) [2018] NSWDC 40 R v Burton [2008] NSWCCA 128 The Queen v Killick [2016] HCA 48; (2016) 259 CLR 256
Category:	Sentence
Parties:	Peter Gavranich (Offender) Director of Public Prosecutions
Representation:	Counsel: Mr Z Khan (for the offender) Solicitors: Morrisons Law (for the offender) Ms G Steedman (Solicitor Advocate for the Director of Public Prosecutions)
File Number(s):	2017/00394008