R v JW

Case [2010] NSWCCA 39 4 March 2010

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New South Wales
Court of Criminal Appeal

CITATION: GOLUBOVIC, Jonny v R [2010] NSWCCA 39

HEARING DATE(S): 12 February 2010

JUDGMENT DATE:
4 March 2010

JUDGMENT OF: McClellan CJatCL at 1; Howie J at 2; Harrison J at 3

DECISION: 1. Leave to appeal granted.
2. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – sentence appeal – where applicant convicted of numerous offences of obtaining property by deception contrary to s 178BA(1) Crimes Act 1900 – where value of property exceeded $250,000 – where applicant sentenced to effective non-parole period of 18 months – whether sentencing judge erred in not imposing entirely concurrent sentences for all offences – whether sentencing judge erred in allowing only 40 per cent combined discount for early plea and assistance to authorities – whether sentencing procedure conducted on basis of agreed facts erroneous – whether sentence manifestly excessive – appeal dismissed.

LEGISLATION CITED: Crimes Act 1900

CATEGORY: Principal judgment

CASES CITED: Della-Vedova v R [2009] NSWCCA 107
MAJW v R [2009] NSWCCA 255
R v XX [2009] NSWCCA 115
S v R [2008] NSWCCA 186
SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim R 249

PARTIES: Jonny Golubovic (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2009/10667; 2009/10668

COUNSEL: F Veltro (Respondent)

SOLICITORS: S Kavanagh, Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/11/0619; 2009/11/0620; 2009/11/0621

LOWER COURT JUDICIAL OFFICER: Berman DCJ

LOWER COURT DATE OF DECISION: 28 August 2009 (date of sentence)

2009/10667
2009/10668

McCLELLAN CJ at CL
HOWIE J
HARRISON J
4 March 2010

Jonny GOLUBOVIC v R

Judgment

1 McCLELLAN CJ at CL: I agree with Harrison J.

2 HOWIE J: I agree with Harrison J.

3 HARRISON J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court on 28 August 2009 by Berman DCJ. He was sentenced to an aggregate sentence of 3 years imprisonment comprised of a non-parole period of 18 months and a balance of term of 18 months. His non-parole period is due to expire on 15 April 2010, so that disposition of this appeal is attended by some urgency. The applicant was unrepresented at the hearing in this Court. He filed detailed written submissions to which I have had regard. However, in the events that I will shortly describe, it is my opinion that the application is wholly without merit and that the appeal should be dismissed.

Background

4 The applicant was arrested and charged with all offences on 16 October 2008. He has been in custody since that time. He entered pleas of guilty at the Central Local Court on 9 July 2009 to the following six offences:

Count 1 : Obtain property by deception contrary to s 178BA(1) of the Crimes Act 1900 (4 plasma television sets $7906).

Count 2 : Obtain property by deception contrary to s 178BA(1) of the Crimes Act (De Lorenzo hair products valued at $8636.75).

Count 3 : Obtain property by deception contrary to s 178BA(1) of 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 JW

Details

AGLC: R v JW [2010] NSWCCA 39
Case: [2010] NSWCCA 39
Decision Date: 4 March 2010

CaseChat Overview and Summary

The appeal against sentence was heard in the Supreme Court of New South Wales. The appellant, JW, appealed against his conviction and sentence for multiple counts of obtaining property by deception, each exceeding a value of $250,000, under section 178BA(1) of the Crimes Act 1900. JW was sentenced to an effective non-parole period of 18 months, which he contested on several grounds, including the imposition of entirely concurrent sentences, the extent of the discount for early plea and assistance, the reliance on agreed facts, and the overall excessiveness of the sentence.

The court was tasked with determining whether the sentencing judge erred in not imposing entirely concurrent sentences for all offences. It also considered if the judge erred in allowing only a 40 per cent combined discount for the early plea and assistance provided to authorities. Further, the court examined whether the sentencing procedure conducted on the basis of agreed facts was erroneous. Lastly, it assessed if the sentence was manifestly excessive.

The court found that the sentencing judge had not erred in imposing non-concurrent sentences, as it was necessary to reflect the seriousness of the offences and the need for specific deterrence. The 40 per cent combined discount was deemed appropriate given the totality of the circumstances, including the appellant's early plea and assistance. The procedure based on agreed facts was not found to be erroneous, as it was supported by the evidence presented. The sentence, though initially appearing lenient, was considered appropriate given the totality of the circumstances and the principles of sentencing for obtaining property by deception. The appeal was dismissed.

Orders