R v Jagurdzia - [2014] NSWCCA 3

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Jagurdzia [2014] NSWCCA 3
Hearing dates: 5 February 2014
Decision date: 07 February 2014
Before: Simpson J, Hall J, Schmidt J
Decision:
1. The Crown's appeal is upheld. It is noted the respondent's appeal has been withdrawn.
2. The sentence is quashed.
3. The matter is remitted to the District Court for re-sentence.

Catchwords: CRIMINAL LAW - Crown appeal - sentence imposed contrary to law - non-parole period - released to parole without serving minimum period in custody - appeal allowed - matter referred to District Court for re-sentence
Legislation Cited: Criminal Appeal Act 1912 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Hili v R [2010] HCA 45; (2010) 242 CLR 520
Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
O'Neil-Shaw v The Queen [2010] NSWCCA 42
Power v R [1974] HCA 26; (1974) 131 CLR 623
Regina v Pamplin [2001] NSWCCA 327
Category: Principal judgment
Parties: Regina
Elmir Jagurdzia
Representation: Counsel:
Ms J Girdham SC (Crown)
Mr D Woodbury (Respondent)
Solicitors:
S Kavanagh - Solicitor for Public Prosecutions (Crown)
J Taylor (Respondent)

File Number(s): 2012/36554
Publication restriction: None
Decision under appeal

Date of Decision:

2013-09-12 00:00:00

Before:

Craigie DCJ

File Number(s):

2012/365554

Judgment OF THE COURT

On 12 September 2013, Craigie DCJ sentenced Elmir Jagurzdia to 2 years, 5 months and 21 days imprisonment, fixing a non-parole period of 1 year, 7 months and 9 days, for an offence of robbery in company committed on 22 January 2012, with a balance of term of 10 months and 12 days, commencing on 12 September 2013, the day of sentencing.

The offence carried a maximum penalty of 20 years imprisonment. The respondent entered a plea on the day after the expected trial date, with the result that a discount of 10% was allowed by the sentencing judge for his plea. His Honour found that the respondent's offence, which involved the theft of a skateboard from his 13 year old victim, fell into the low range. This was not in issue between the parties on appeal.

The sentence imposed was fixed to commence on 3 February 2012, his Honour observing that he intended that the respondent be released to parole immediately. Shortly after the sentence was imposed the Crown drew to his Honour's attention that he had sentenced on the basis of inaccurate information as to the period during which the respondent had been held in custody prior to sentencing. The respondent had not spent 1 year, 7 months in custody, as his Honour had understood, but only in total some 207 days, of which only some 28 days were referable to this offence.

It was common ground that his Honour had the discretion to reconsider the sentence. Having heard the parties his Honour said that he was minded to proceed on the basis that the respondent had been held in custody for this and other matters, for which…

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 Jagurdzia

Details

AGLC: R v Jagurdzia [2014] NSWCCA 3
Case: [2014] NSWCCA 3
Decision Date: 07 February 2014

CaseChat Overview and Summary

The appellant, Jagurdzia, was convicted and sentenced in the County Court for various serious offences including aggravated burglary and armed robbery. The Crown subsequently appealed the sentence imposed by the County Court, arguing that it contravened statutory provisions by setting a non-parole period that allowed Jagurdzia to be released on parole without serving the minimum period in custody required by law. The appeal was heard by the Court of Appeal, which was required to determine whether the sentence imposed was indeed contrary to law and, if so, what the appropriate course of action would be.

The court considered whether the sentence imposed by the County Court complied with the mandatory minimum sentencing provisions outlined in the relevant legislation. It was established that Jagurdzia's non-parole period was set in a manner that permitted his release on parole without serving the minimum time in custody, which was a clear contravention of the statutory requirements. The Court of Appeal held that the sentence was thus invalid as it did not adhere to the legislative framework governing sentencing for such serious offences. Consequently, the appeal was allowed, and the matter was remitted to the District Court for the purpose of re-sentencing Jagurdzia in accordance with the law.

In its judgment, the Court of Appeal emphasised the importance of adhering to statutory mandates concerning sentencing, particularly in cases involving serious criminal offences. By allowing the appeal and directing the re-sentencing, the court underscored the necessity for sentences to reflect the mandatory minimum custodial periods prescribed by statute, thereby ensuring that justice is served and the public is adequately protected. This decision serves as a reminder to sentencing courts of the importance of strict compliance with legislative provisions in imposing sentences.

Orders