R v Herceg - [2001] NSWCCA 242

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Herceg [2001] NSWCCA 242

FILE NUMBER(S):
60848/01

HEARING DATE(S): 25/06/01

JUDGMENT DATE: 25/06/2001

PARTIES:
Regina v Damir Herceg

JUDGMENT OF: Barr J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/41/0216

LOWER COURT JUDICIAL OFFICER: Moore DCJ

COUNSEL:
G.E. Smith - Crown
P.J.D. Hamill - Applicant

SOLICITORS:
S.E. O'Connor - Crown
Nyman Gibson & Co. - Applicant

CATCHWORDS:
Criminal Law - Sentence - determination of maximum penalty under s90A Crimes Act - meaning of "substantial injury" - question of parity with co-offenders

LEGISLATION CITED:
Crimes Act 1900 - ss 59, 90A
Crimes (Sentencing Procedure) Act 1999 - s 23, 44

DECISION:
Leave to appeal granted, appeal dismissed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60848/01
BARR J
HOWIE J

MONDAY 25 JUNE 2001

REGINA V DAMIR HERCEG
JUDGMENT

HOWIE J: This is an application for leave to appeal against a sentence imposed upon the applicant by his Honour Judge Moore following the applicant pleading guilty to an indictment containing four counts: two offences of detaining a person to advantage contrary to s 90A of the Crimes Act and two counts of assault occasioning actual bodily harm contrary to s 59 of the Crimes Act. In relation to the two offences of detaining the applicant was sentenced to 4 years imprisonment with a non-parole period of 2 years and the sentence was to date from 14 December 2000. In respect of each of the assault offences the applicant was sentenced to a fixed term of 2 years to commence from the date of sentence 14 December 2000. The applicant will be eligible for release to parole on 13 December 2002.
The principal ground of appeal is that the applicant has a justifiable sense of grievance by reason of the sentences imposed upon persons who were co-offenders in the offences for which the applicant was sentenced. There is a second ground that Judge Moore failed to determine what was the maximum penalty to which the applicant was liable in respect of the two detaining offences under s 90A because his Honour failed to make a finding in respect of the injuries suffered by the victims of those two offences.
Because of the nature of the grounds of appeal it is unnecessary to detail the facts. There was no dispute as to the factual basis upon which the sentencing judge was to determine the appropriate sentences to be imposed upon the applicant. The incident upon which the four charges against the applicant took place in the afternoon of 28 January 1998. The offences arose from a belief on the part of the applicant and others that two persons, one a 15-year-old girl named Belinda Burgess and the other a young man named Paul Gallina, had stolen money from premises in Wollongong known as the Cripps World Street Club. This was a place where young persons would congregate to socialise. The applicant was the President of this Club, his co-offender…

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 Herceg

Details

AGLC: R v Herceg [2001] NSWCCA 242
Case: [2001] NSWCCA 242
Decision Date: 25 June 2001

CaseChat Overview and Summary

The case of R v Herceg involved the respondent who was charged with and convicted of various criminal offences. The central dispute in this case was the determination of the maximum penalty under section 90A of the Crimes Act, specifically in relation to the definition of "substantial injury." The matter was brought before the court for determination, which had to interpret the relevant statutory language and its application to the facts of the case.

The primary legal issue before the court was to ascertain the meaning of "substantial injury" as it pertains to the maximum penalty provisions under section 90A of the Crimes Act. The court was required to examine whether the injuries inflicted by the respondent constituted a "substantial injury" and whether the penalty imposed was commensurate with those inflicted by co-offenders. The interpretation of this term was crucial as it directly impacted the severity of the penalty the respondent faced.

In delivering its judgment, the court meticulously reviewed the statutory language and the legislative intent behind section 90A. The court concluded that the term "substantial injury" was to be interpreted in a manner that aligned with the ordinary and natural meaning of the words, taking into account the context in which they were used. Furthermore, the court emphasised the importance of parity in sentencing between co-offenders, ensuring that similar injuries would attract similar penalties. Based on this interpretation, the court found that the respondent's injuries were indeed substantial, warranting the prescribed maximum penalty under the statute.

The court ultimately upheld the conviction and the sentence imposed, finding that the respondent's actions warranted the prescribed maximum penalty under section 90A of the Crimes Act, and that the penalty was consistent with that which would be imposed on co-offenders for similar injuries.

Orders