R v Klobucar (No 5) - [2016] ACTSC 383

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Klobucar (No 5)
Citation:	[2016] ACTSC 383
Hearing Date:	13 December 2016
DecisionDate:	13 December 2016
Before:	Penfold J
Decision:	Mr Klobucar is convicted of one offence of possessing a prohibited weapon and sentenced to five months imprisonment from 1 January 2014 until 31 May 2014.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – plea of guilty to one offence of possessing a prohibited weapon (nunchakus) – offender affected by mental impairment when offence detected – limited criminal history – sentence of imprisonment backdated to account for time spent in custody.
Legislation Cited:	Prohibited Weapons Act 1996 (ACT), s 5
Cases Cited:	R v Klobucar (No 2) [2016] ACTSC 53 R v Klobucar(No 4) [2016] ACTSC 348
Parties:	The Queen (Crown) Danny Klobucar (Offender)
Representation:	Counsel Mr M Fernandez with Ms A Jamieson-Williams (Crown) Mr J Purnell SC (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson Lawyers (Offender)
File Number:	SCC 215 of 2014

The offence

Danny Klobucar has pleaded guilty to one offence of possessing a prohibited weapon contrary to s 5 of the Prohibited Weapons Act 1996 (ACT), which carries a maximum penalty including five years imprisonment. The Crown accepted that plea of guilty in full satisfaction of the two remaining charges, both of possession of a prohibited weapon, on an indictment dated 30 May 2016.

At Mr Klobucar’s trial for the murder of Miodrag Gajic on 1 January 2014, evidence was given of a search of Mr Klobucar’s car after he was arrested on the night of Mr Gajic’s death. A pair of nunchakus was found in the car. It is accepted that the nunchakus are a prohibited weapon, and there is evidence before me that Mr Klobucar was not authorised to possess them. He was charged with that possession, and a number of other offences, on 2 January 2014, and remanded in custody.

Mr Klobucar spent over two years in custody in relation to the murder charge before his trial on that charge finished with a verdict of not guilty by reason of mental impairment, and I ordered him to be detained in custody for immediate review by the ACT Civil and Administrative Tribunal (ACAT). Since that review, he has been under the jurisdiction of ACAT.

Evidence

Earlier this year, Mr Klobucar sought that proceedings for this charge and the other prohibited weapons charge be permanently stayed. I refused that application on 25 November 2016 (R v Klobucar(No 4) [2016] ACTSC 348). In the course of that decision, I noted that there was evidence on which to base a finding that the state of affairs aspect of the weapons offences was satisfied, specifically that the two weapons were in Mr Klobucar’s possession without authorisation. In that decision, I also concluded that there was no scope for mental impairment verdicts in relation to the two weapons charges, nor any suggestion…

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 Klobucar (No 5)

Details

AGLC: R v Klobucar (No 5) [2016] ACTSC 383
Case: [2016] ACTSC 383
Decision Date: 13 December 2016

CaseChat Overview and Summary

The defendant, Mr. Klobucar, was convicted by the court for possessing a prohibited weapon, specifically nunchakus. The matter was heard in the relevant Australian court. The central issue before the court was whether the sentence of imprisonment imposed on Mr. Klobucar should be backdated to account for the time he had already spent in custody, given that he was affected by a mental impairment when the offence was detected, and that he had a limited criminal history.

The court had to determine whether the principles of justice and fairness warranted a backdating of the sentence, considering the defendant's mental state at the time of the offence and his limited prior criminal conduct. The court balanced these factors against the need for the sentence to serve as a just punishment and deterrent, while also ensuring that the defendant's rights were protected. After considering the circumstances, the court decided that it was appropriate to backdate the sentence to reflect the time Mr. Klobucar had already spent in custody.

As a result of the court's decision, Mr. Klobucar was convicted of possessing a prohibited weapon and sentenced to five months imprisonment. The sentence was backdated to commence on 1 January 2014 and to expire on 31 May 2014, thereby accounting for the period he had already spent in custody.

Orders

Orders of the court

Mr Klobucar is convicted of one offence of possessing a prohibited weapon and sentenced to five months imprisonment from 1 January 2014 until 31 May 2014.

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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