R v Kolicic - [2007] VSCA 87

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 196 of 2006

THE QUEEN
	v
ILIJA KOLICIC

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JUDGES:	VINCENT and NEAVE JJA and KELLAM AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 April 2007
DATE OF JUDGMENT:	30 April 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 87

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Criminal law - Sentencing – Obtaining financial advantage by deception - Obtaining property by deception - Whether failure to plead guilty and necessity for cross-examination treated as aggravating factor by trial judge – Whether total effective sentence manifestly excessive – Whether appropriate weight to mitigating factors and aggravating factors – No sentencing error – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C M Quin	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr L C Carter	Robert Stary & Associates

VINCENT JA:

I will invite Neave JA to deliver the first judgment in this matter.

NEAVE JA:

The appellant, Mr Kolicic, aged 52, was convicted by a jury on two counts of obtaining financial advantage by deception and two counts of obtaining property by deception. Count 1 related to the transfer of $5,000 by the complainant, Mrs Jakopovic, from her bank account to the appellant's bank account and count 3 concerned a similar transfer of $30,000. Counts 4 and 5 concerned two payments of $10,000 which the complainant made to the appellant in cash. On 23 June 2006, the appellant was sentenced to a total effective sentence of 32 months, with a non-parole period of 21 months. This is an appeal by Mr Kolicic against that sentence.

The Facts

In March 2004, the appellant was introduced by a friend to the complainant, a pensioner in her sixties. The appellant convinced Mrs Jakopovic that he was a man of means but that he needed a place to live for a short period while he was looking for a house. On 22 March 2006 the appellant moved into the complainant's home. At about the same time, the appellant told the complainant that he wanted to buy a cleaning business but that he was waiting to receive money from the proceeds of a matrimonial property settlement. The appellant asked Mrs Jakopovic to lend him the money. She agreed to do so on the basis that the appellant would repay her the money when his divorce was settled. Between 24 March and 7 April she gave the appellant the amounts totalling $55,000. On 7 April 2006 the appellant moved out of the complainant's home.

In his record of interview the appellant admitted to receiving the $35,000 from the complainant but denied that he said he would repay her from the amount he received from his matrimonial property division. He said that they had had an intimate sexual relationship and she had given him money in this context. In his record of interview he also said that he would receive $500,000 to $600,000 USD from the proceeds of the sale of his parents' house in Montenegro. Mrs Jakopovic denied that there had been…

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.

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Details

AGLC: R v Kolicic [2007] VSCA 87
Case: [2007] VSCA 87
Decision Date: 30 April 2007

CaseChat Overview and Summary

The case before the court involved the appellant, who had been found guilty of obtaining financial advantage by deception and obtaining property by deception. The matter was heard in the appellate division of the Supreme Court of Queensland. The appellant challenged the severity of the sentence imposed, arguing that the trial judge had improperly considered his failure to plead guilty and the necessity for cross-examination as aggravating factors. Additionally, the appellant claimed that the total effective sentence was manifestly excessive and that the trial judge had not given appropriate weight to the mitigating factors.

The legal issues before the court were whether the trial judge erred in considering the appellant's failure to plead guilty and the necessity for cross-examination as aggravating factors and whether the sentence imposed was manifestly excessive. Furthermore, the court had to consider whether the trial judge had given appropriate weight to the mitigating and aggravating factors in determining the sentence.

The court held that there was no error in the trial judge's consideration of the appellant's failure to plead guilty and the necessity for cross-examination as aggravating factors. The court found that these factors were relevant to the appellant's culpability and were properly considered. In relation to the sentence, the court held that it was not manifestly excessive and that the trial judge had given appropriate weight to the mitigating and aggravating factors. The court found that the sentence reflected the seriousness of the offences and the appellant's culpability.

In light of the above, the appeal was dismissed, and the original sentence was upheld. The court found that there was no basis to interfere with the trial judge's assessment of the appropriate sentence. The appellant's conviction and sentence were therefore affirmed.

Orders