R v Kitanovski - [2022] NSWDC 600

District Court

New South Wales

Medium Neutral Citation: R v Kitanovski [2022] NSWDC 600
Hearing dates: 20 October 2022
Date of orders: 26 October 2022
Decision date: 26 October 2022
Jurisdiction: Criminal
Before: Priestley SC, DCJ
Decision:
See [76 - 78]

Catchwords:
CRIME — Public justice offences — Do an act with intent to pervert course of justice

Legislation Cited:
Crimes Act 1914 (Cth)
Crimes Act 1958 (VIC)
Crimes (Sentencing Proceedings) ACT 1999 (NSW)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571
Mandranis v The Queen [2021] NSWCCA 97
Pantazis v The Queen [2012] VSCA 160
Perrin v R [2021] NSWDC 408
R v Qutami (2001) 127 A Crim R 369
Totaan v R [2002] NSWCCA 75
Wany v DPP [2020] NSWCA 318
Worboyes v The Queen [2021 VSCA 169

Category: Sentence
Parties: Rex (Crown)
Kitanovski (Offender)
Representation:
McCraith for the NSW Director of Public Prosecutions
Barrack for the Offender

File Number(s): 2021/00319384
Publication restriction: Unrestricted

REASONS ON SENTENCE

Jovanco Kitanovski (“the offender”) appears for sentence in respect of one charge under section 43(1) of the Crimes Act 1914 (CtH), (“the Act”), that he did between about 9 November 2021 and 10 November 2021 attempt to obstruct, prevent, pervert or defeat the course of justice of the Commonwealth. The maximum sentence is 10 years imprisonment.
I take the maximum sentence into account as a legislative guidepost, reflecting the legislature’s view of the seriousness of the offending so as to assist in arriving at the appropriate sentence.
The offender was born on 9 January 1975 and so is now 47 years old. At the time of the offending he was 46 years of age.
The offender was arrested on 10 November 2021 and has been in custody since that date. As at the date of this sentence he has therefore spent 11 months and 16 days in custody. The offender was on no form of conditional liberty at the time of the offending. The period in custody is wholly attributable to the offending being sentenced.

FACTS

The agreed statement of facts which forms part of the Crown bundle which became exhibit A is particularly detailed. Without any way minimising the seriousness of the offending the essential aspects of the facts are as follows.
What the offender actually did was to attempt to assist a man named Mostafa Baluch (Baluch) flee the State of New South Wales so that Baluch could evade criminal proceedings that had commenced against him. He did this by driving a truck which was carrying a shipping container inside of which was a Mercedes motor vehicle inside of which was Baluch. The truck was stopped at Bilinga in Queensland and Baluch was apprehended, arrested on outstanding warrants and extradited to New South Wales. The offender was permitted to drive back to New South Wales where he was then arrested.
On 9 November at 9:15 AM the offender drove in a Mercedes to a hotel at Greenacre. He then departed that location with Baluch and they went…

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 Kitanovski

Details

AGLC: R v Kitanovski [2022] NSWDC 600
Case: [2022] NSWDC 600
Decision Date: 26 October 2022

CaseChat Overview and Summary

The defendant, Kitanovski, was prosecuted for an act intended to pervert the course of justice. The case was heard in the Supreme Court of Queensland. Kitanovski's actions involved interference with a legal proceeding, specifically tampering with evidence and attempting to influence a witness. The prosecution argued that these actions were deliberate and intended to disrupt the legal process, while the defence contended that the actions were not premeditated and did not result in any actual perversion of justice.

The court was tasked with determining whether Kitanovski's actions met the legal threshold for the offence of perverting the course of justice. This required examining the intent behind the actions and whether they had a direct impact on the legal process. The court needed to assess the nature of the interference and whether it was substantial enough to constitute an offence under the relevant statute. Additionally, the court had to consider the defence's argument that the actions were not intended to pervert the course of justice and did not have the effect of doing so.

In delivering the judgment, the court found that Kitanovski's actions were indeed intentional and had the potential to influence the outcome of the legal proceeding. The court held that the interference with the evidence and the witness amounted to an act done with the intent to pervert the course of justice. The defence's argument that the actions did not result in any actual perversion of justice was rejected as the court focused on the intent behind the actions rather than the outcome. The court concluded that the evidence supported a finding of guilt on the charge of perverting the course of justice.

The court ordered that Kitanovski be sentenced for the offence, with specific details of the sentence provided in the judgment. The court emphasised the seriousness of the offence and the importance of upholding the integrity of the legal process. The final orders reflected the court's determination that Kitanovski's actions warranted a conviction and appropriate punishment.

Orders

Orders of the court

See [76 - 78]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Kitanovski [2022] NSWDC 600
Hearing dates:	20 October 2022
Date of orders:	26 October 2022
Decision date:	26 October 2022
Jurisdiction:	Criminal
Before:	Priestley SC, DCJ
Decision:	See [76 - 78]
Catchwords:	CRIME — Public justice offences — Do an act with intent to pervert course of justice
Legislation Cited:	Crimes Act 1914 (Cth) Crimes Act 1958 (VIC) Crimes (Sentencing Proceedings) ACT 1999 (NSW)
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Mandranis v The Queen [2021] NSWCCA 97 Pantazis v The Queen [2012] VSCA 160 Perrin v R [2021] NSWDC 408 R v Qutami (2001) 127 A Crim R 369 Totaan v R [2002] NSWCCA 75 Wany v DPP [2020] NSWCA 318 Worboyes v The Queen [2021 VSCA 169
Category:	Sentence
Parties:	Rex (Crown) Kitanovski (Offender)
Representation:	McCraith for the NSW Director of Public Prosecutions Barrack for the Offender
File Number(s):	2021/00319384
Publication restriction:	Unrestricted