R v Jovic & Jovic - [2019] VSC 379

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0196; S CR 2018 0197

Between:

THE QUEEN

-and-

MILAN JOVIC &

SASA JOVIC

Accused

---

JUDGE:

Croucher J

WHERE HELD:

Melbourne

DATES OF HEARING:

8 June 2019

DATES OF RULINGS:

11 June 2019

CASE MAY BE CITED AS:

R v Jovic & Jovic

MEDIUM NETRAL CITATION:

[2019] VSC 379

---

CRIMINAL LAW — Sentence following trial — Brothers MJ and SJ (second and third accused) both acquitted of murder and manslaughter but convicted of affray and aggravated burglary — Only MJ and SJ standing for sentence — MN (principal accused) convicted of affray, aggravated burglary and murder to be sentenced at a later time — All three accused involved in affray, with several others (including DD), inside dining room of restaurant — After accused and others ejected from dining room, all three accused entered kitchen at rear of restaurant with intent to commit an offence involving an assault to a person (DD) therein — Upon entry, DD assaulted by MN and MJ — MN spontaneously picked up knife and stabbed DD to chest, killing him — MJ and SJ have no prior convictions — Affray at lower end of gravity — No or low level injuries — Aggravated burglary unusual — No weapons — Nor was offence committed upon residence — While entry to building intended by each offender, fighting spilled through doorway when MN threw punch or punches at DD — Had DD had been just outside at the time accused came past back door, unlikely that aggravated burglary would have occurred — Parity — MJ only 21 at time of offending, whereas SJ aged 29 — MJ’s offending more serious than SJ’s — Three other co-offenders in affray sentenced to community correction orders (CCOs) without conviction but would have received longer CCOs with conviction had they pleaded not guilty — MJ and SJ spent nearly 20 months in custody pending trial and sentence — MJ and SJ submit that offending does not necessarily warrant imprisonment but that, if imprisoned, the period already spent in custody exceeds the required total effective sentence — Crown submit that a total effective sentence with a non-parole period is necessary — MJ sentenced to six months’ imprisonment on affray and 18 months’ imprisonment on aggravated burglary (concurrent), making a total effective sentence of 18 months’ imprisonment, with non-parole period of nine months — SJ sentenced to three months’ imprisonment on affray and 16 months’ imprisonment on aggravated burglary (concurrent), making a total effective sentence of 16 months’ imprisonment, with non-parole period of eight months — Pre-sentence detention of 600 days declared — MJ and SJ released from Court as total effective sentences exceeded by pre-sentence detention.

Crimes Act 1958 (Vic), ss 77 & 320.

R v Newman & Turnbull [1997] 1 VR 146; The Queen v Obradovic & Ors [2018] VSC 805; DPP v Meyers (2014) 44 VR 486; DPP v Vella & Ray

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 Jovic & Jovic

Details

AGLC: R v Jovic & Jovic [2019] VSC 379
Case: [2019] VSC 379
Decision Date: 11 June 2019

CaseChat Overview and Summary

In the matter of R v Jovic & Jovic, the defendants, MJ and SJ, were acquitted of murder and manslaughter but found guilty of affray and aggravated burglary. The case was heard in a court of criminal jurisdiction. The dispute centred on the appropriate sentencing for the defendants following their convictions for affray and aggravated burglary. The principal accused, MN, who was convicted of affray, aggravated burglary and murder, was to be sentenced at a later time.

The legal issues before the court included the determination of the appropriate sentence for the defendants, given the mitigating factors such as their age, the absence of prior convictions, and the lengthy pre-sentence detention already served. The court had to consider the nature and circumstances of the offences, including the unusual circumstances of the aggravated burglary and the lower gravity of the affray. Additionally, the court needed to balance the principle of parity with the severity of the defendants' roles in the crime.

The court, in its reasoning, noted the unusual nature of the aggravated burglary and the relatively low level of injuries inflicted during the affray. It acknowledged the defendants' pre-sentence detention and their age at the time of the offence. The court determined that the defendants' total effective sentence should reflect the circumstances of the case and the principle of parity. Consequently, MJ was sentenced to six months' imprisonment for affray and 18 months for aggravated burglary, with a total effective sentence of 18 months, and a non-parole period of nine months. SJ received a sentence of three months for affray and 16 months for aggravated burglary, with a total effective sentence of 16 months, and a non-parole period of eight months. Given the extensive pre-sentence detention, the defendants were released from court as their total effective sentences had been exceeded by the time already served in custody.

Orders