R v Jojkic, Dragan - [2010] NSWDC 155

CITATION: R v Jojkic, Dragan [2010] NSWDC 155
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 20/11/2009 and 19/02/2010

JUDGMENT DATE:
26 March 2010

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: MANSLAUGHTER:
Sentence to a non-parole period of 4 years and 9 months. Balance of term of 3 years and 6 months.
Disqualified for 8 years to date from the 26th March 2010.
AGGRAVATED DANGEROUS DRIVING:
Sentence to a non-parole period of 3 years. Balance of term of 1 year and 6 months.
Disqualified for 8 years to date from the 26th March 2010.
Sentences partly cumulative to each other. Overall sentence 9years 6 months with non parole period of 6 years.

CATCHWORDS: Criminal Law - Sentencing - Manslaughter (gross criminal negligence) - Aggravated Driving occasioning grievous bodily harm - High performance vehicle - suspended driver - impact speed 120kph - speed limit 60 kph - vehicle negotiating curve loses tyre traction as result of excessive speed - main road - vehicle crosses median strip into path of on-coming vehicle - impact caused death to driver, GBH to passenger of on-coming vehicle - blood/alcohol reading 0.117 - prohibited drugs also present in blood - 17 or so persons put at actual risk - subjective circumstances reviewed - offender seriously injured in collision - custodial health care of offender criticised - prior speeding and PCA offending - 25% discount for plea and remorse - limit of contents of victim impact statement - responsibility of prosecution to tender v.i.s. - implies responsibility of prosecution to assist victims prepare v.i.s. in admissible form

LEGISLATION CITED: Criminal Procedure Act 1986
Road Transport (Vehicle Registration) Act 2007
Road Transport (Driver Licensing) Act 1998
Crimes Act 1900
Crimes (Sentencing Procedure) Regulations 2005

CASES CITED: Gladue v The Queen [1999] 1SCR 688 [80]
R v Cuthbert (1967) 2 NSWR 329
R v Rushby [1977] NSWLR 597
R v Hayes [1984] 1 NSWLR 740
Salvatore Previtera (1997) 94 A.Crim.R.76
R v Sellers (1997) 92 A. Crim. R 381 observed
R v Whyte (2002) 55 NSWLR 252

PARTIES: Regina
Dragan Jojkic

FILE NUMBER(S): 2009/00144605

COUNSEL: Crown: S Dowling
Defence: G Bellew SC

JUDGMENT

1. Disaster, destruction and death can be cruelly random. Destruction through serious injury will be grim enough, but unlike the other two, death has a terrible finality about it. All are difficult to accept at any time but when fault, and in particular when criminal fault, has played a causative part, accepting the calamitous consequences of both death and truly serious injury can cause grief, pain, longing and emptiness to compete with bitterness, resentment and anger. All these reactions are natural and understandable among the mourners and the downcast as they approach the court’s doors looking for justice from the law.

2. In our system of justice, or in our system of law, personal justice is administered by the civil courts. The criminal court sits with a different perspective. It is not the…

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 Jojkic, Dragan

Details

AGLC: R v Jojkic, Dragan [2010] NSWDC 155
Case: [2010] NSWDC 155
Decision Date: 26 March 2010

CaseChat Overview and Summary

Dragan Jojkic was convicted of manslaughter and aggravated driving occasioning grievous bodily harm and brought an appeal against his sentence. The manslaughter related to the death of the driver of an oncoming vehicle, and grievous bodily harm to the passenger, after the appellant lost control of his vehicle while travelling at 120kph in a 60kph zone. The appellant's vehicle crossed the median strip of the road and collided with the oncoming vehicle. The appellant had a blood alcohol reading of 0.117 and also had prohibited drugs in his system at the time of the offence. The court considered the appellant's serious injuries from the collision, the criticism of the custodial health care provided to him, and his prior offending history. The court also considered the subjective circumstances of the case, including the number of people who were put at risk by the appellant's driving.

The court was required to consider the principles of sentencing for manslaughter and aggravated driving occasioning grievous bodily harm, including the discount for plea and remorse, and the content and admissibility of victim impact statements. The court noted that the prosecution had a responsibility to tender victim impact statements and to assist victims in preparing them in an admissible form. The court also considered the need to balance the appellant's responsibility for the offence with the need for deterrence and rehabilitation.

The court considered the appellant's offending history, his blood alcohol and drug levels at the time of the offence, and the subjective circumstances of the case, including the number of people who were put at risk by the appellant's driving. The court considered that the appellant's injuries from the collision and the criticism of the custodial health care provided to him were mitigating factors. However, the court also considered the need for deterrence and the appellant's prior offending history. The court imposed a non-parole period of 4 years and 9 months for manslaughter and a non-parole period of 3 years for aggravated driving occasioning grievous bodily harm. The sentences were partly cumulative, resulting in an overall sentence of 9 years and 6 months with a non-parole period of 6 years. The appellant was also disqualified from driving for 8 years.

Orders

Orders of the court

MANSLAUGHTER:

Sentence to a non-parole period of 4 years and 9 months. Balance of term of 3 years and 6 months.

Disqualified for 8 years to date from the 26th March 2010.

AGGRAVATED DANGEROUS DRIVING:

Sentence to a non-parole period of 3 years. Balance of term of 1 year and 6 months.

Disqualified for 8 years to date from the 26th March 2010.

Sentences partly cumulative to each other. Overall sentence 9years 6 months with non parole period of 6 years.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Jojkic, Dragan [2010] NSWDC 155 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	20/11/2009 and 19/02/2010
JUDGMENT DATE:	26 March 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	MANSLAUGHTER: Sentence to a non-parole period of 4 years and 9 months. Balance of term of 3 years and 6 months. Disqualified for 8 years to date from the 26th March 2010. AGGRAVATED DANGEROUS DRIVING: Sentence to a non-parole period of 3 years. Balance of term of 1 year and 6 months. Disqualified for 8 years to date from the 26th March 2010. Sentences partly cumulative to each other. Overall sentence 9years 6 months with non parole period of 6 years.
CATCHWORDS:	Criminal Law - Sentencing - Manslaughter (gross criminal negligence) - Aggravated Driving occasioning grievous bodily harm - High performance vehicle - suspended driver - impact speed 120kph - speed limit 60 kph - vehicle negotiating curve loses tyre traction as result of excessive speed - main road - vehicle crosses median strip into path of on-coming vehicle - impact caused death to driver, GBH to passenger of on-coming vehicle - blood/alcohol reading 0.117 - prohibited drugs also present in blood - 17 or so persons put at actual risk - subjective circumstances reviewed - offender seriously injured in collision - custodial health care of offender criticised - prior speeding and PCA offending - 25% discount for plea and remorse - limit of contents of victim impact statement - responsibility of prosecution to tender v.i.s. - implies responsibility of prosecution to assist victims prepare v.i.s. in admissible form
LEGISLATION CITED:	Criminal Procedure Act 1986 Road Transport (Vehicle Registration) Act 2007 Road Transport (Driver Licensing) Act 1998 Crimes Act 1900 Crimes (Sentencing Procedure) Regulations 2005
CASES CITED:	Gladue v The Queen [1999] 1SCR 688 [80] R v Cuthbert (1967) 2 NSWR 329 R v Rushby [1977] NSWLR 597 R v Hayes [1984] 1 NSWLR 740 Salvatore Previtera (1997) 94 A.Crim.R.76 R v Sellers (1997) 92 A. Crim. R 381 observed R v Whyte (2002) 55 NSWLR 252
PARTIES:	Regina Dragan Jojkic
FILE NUMBER(S):	2009/00144605
COUNSEL:	Crown: S Dowling Defence: G Bellew SC