R v Klickovic - [2018] ACTSC 141

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Klickovic
Citation:	[2018] ACTSC 141
Hearing Date:	11 May 2018
DecisionDate:	11 May 2018
Before:	Mossop J
Decision:	See [54]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – forcible confinement – common assault – unusual domestic violence context – specific deterrence – general deterrence – not suitable for intensive corrections order – partially suspended sentence
Legislation Cited:	Crimes Act 1900 (ACT), ss 26, 34
Cases Cited:	Cranfield v The Queen [2018] ACTCA 3 R v Eimerl [2015] ACTSC 72 R v Glen [1994] NSWCCA 1 R v Ndlovu [2017] ACTSC 244 R v Williams [2016] ACTSC 389 Shaw v R [2008] NSWCCA 58 Spence v Thomas (1983) 5 Cr App Rep (S) 413
Parties:	The Queen (Crown) Jovan Klickovic (Offender)
Representation:	Counsel T Hickey (Crown) M Kukulies-Smith (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Lawyers (Offender)
File Numbers:	SCC 125 of 2017 SCC 126 of 2017

MOSSOP J:

Introduction

The offender, Jovan Klickovic, has pleaded guilty to two rolled-up offences; the first being a count of forcible confinement, and the second a charge of common assault.

A person who unlawfully confines or imprisons another person is guilty of the offence of forcible confinement, contrary to s 34 of the Crimes Act 1900 (ACT), which carries a maximum penalty of 10 years imprisonment.

The offence of common assault carries a maximum penalty of two years imprisonment pursuant to s 26 of the Crimes Act.

Facts

In about 2011, the offender and the victim, [his partner], started dating and have been in an on-again, off-again de facto relationship since that time. In 2012, the victim gave birth to the couple’s first daughter.

During the course of their relationship, the victim began taking the illicit drug methylamphetamine (ice), and although she attempted to enter rehabilitation, she found it difficult to stop her drug use altogether.

By January 2017, the victim was living in government housing in Braddon whilst the offender lived with his parents in Royalla, New South Wales (NSW). Despite not living together, the victim and the offender continued their relationship and the offender had a key to her unit. The offender, however, had sole care of their daughter.

At about 8:30pm on Tuesday, 10 January 2017, the victim was at her home in Braddon when the offender arrived with two teenagers. The offender entered the unit and began accusing her of giving sexual favours to another man for drugs. He slapped her face a number of times with an open hand. She fell to the ground and covered her face. The offender asked “how could you do this?” and picked her up. The victim repeatedly denied the accusations.

The offender told the victim that they were going to go for drive; the victim reluctantly agreed because she was worried that if she refused, she would continue to be assaulted.

As the offender, the victim and the two teenagers…

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 Klickovic

Details

AGLC: R v Klickovic [2018] ACTSC 141
Case: [2018] ACTSC 141
Decision Date: 11 May 2018

CaseChat Overview and Summary

In the case of R v Klickovic, the defendant was convicted of forcible confinement and common assault, with the matter being heard in a court of criminal jurisdiction. The case arose from a domestic violence situation, which was marked by an unusual series of events. The defendant confined the victim in a bedroom, resulting in a physical altercation. The prosecution argued that the defendant's actions warranted a sentence that considered the specific and general deterrence aspects of the crime, alongside the unique circumstances of domestic violence.

The legal issues before the court encompassed the appropriate sentencing approach for crimes of forcible confinement and common assault within a domestic violence context. The court had to balance the need for punishment, specific deterrence, and general deterrence while also considering whether an intensive corrections order was suitable. The defence argued for a sentence that would not only punish the defendant but also offer a chance for rehabilitation. The prosecution contended for a sentence that would reflect the severity of the crime and serve as a deterrent to others.

The court deliberated on the nature of the crime and the defendant's personal circumstances, including the domestic violence context. It was determined that the defendant's actions warranted a sentence that included both punishment and deterrence. The court found that an intensive corrections order was not appropriate, given the severity of the crime and the defendant's history. Ultimately, the court decided on a partially suspended sentence, which allowed for a balance between punishment and the opportunity for rehabilitation. The court's decision took into account the unique nature of the domestic violence situation and the need to deter similar behaviour in the future.

The final orders of the court included the imposition of a partially suspended sentence, reflecting the need for punishment, deterrence, and the opportunity for rehabilitation. The specific terms of the sentence, including the duration of the suspension and the conditions attached, were detailed in the judgment. This outcome aimed to address the crime's severity while considering the broader implications of domestic violence and the defendant's potential for rehabilitation.

Orders

Orders of the court

See [54]

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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