R v Kotevski - [1998] NSWCCA 1

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Kotevski [1998] NSWCCA 1
Hearing dates: 3 April 1998
Decision date: 03 April 1998
Before: James J at [1]; Hulme J at [34]; Simpson J at [59]
Decision:
Leave to appeal against sentence granted but appeal dismissed

Catchwords: CRIMINAL LAW AND PROCEDURE – appeal against sentence – malicious wounding with intent to do grievous bodily harm – victim was applicant's estranged wife – applicant lost self control while under stress – whether sentencing judge failed sufficiently to take into account applicant's belief that his wife had treated him unfairly – whether sentencing judge should have entered into a determination of the merits of the matrimonial disputes between the applicant and his wife
Legislation Cited: Crimes Act 1900 (NSW), s 33
Criminal Appeal Act 1912 (NSW), s 6AA
Evidence Act 1995 (NSW)
Sentencing Act 1989 (NSW), s 5(2)
Cases Cited: R v Farroukh (Court of Criminal Appeal (NSW), 29 March 1996, unrep)
R v Phelan (1993) 66 A Crim R 446
R v Fernando (1992) 76 A Crim R 58
Category: Principal judgment
Parties: Bill Kotevski (Applicant)
Regina (Respondent)
Representation:
Counsel:
K F Morrissey (Applicant)
P G Berman (Respondent)
Solicitors:
Stockman & Evans (Applicant)
S E O'Connor (Respondent)

File Number(s): 60405/97
Decision under appeal

Court or tribunal:

District Court

Before:

Cooper DCJ

Judgment

JAMES J: Bill Kotevski has applied for leave to appeal against a sentence imposed on him in the District Court by Judge Cooper, following a plea of guilty to a charge of malicious wounding with intent to do grievous bodily harm. In sentencing the applicant Judge Cooper took into account a further offence of assault occasioning actual bodily harm. His Honour sentenced the applicant to a term of penal servitude for three years, consisting of a minimum term of two years three months commencing 10 September 1996 and an additional term of nine months. The applicant had been continuously in custody since 10 September 1996, which was the date on which the offences were committed and the applicant was arrested. Under section 33 of the Crimes Act the offence of malicious wounding with intent to do grievous bodily harm carries a maximum penalty of penal servitude for twenty-five years.
The application for leave to appeal originally came on for hearing on 30 March 1998 before a Bench consisting of two judges of this Court, Hulme and Simpson JJ, pursuant to a direction given by the Chief Justice under section 6AA of the Criminal Appeal Act. However, as on 30 March those two judges were divided in opinion, the proceedings fell to be re-heard and determined by a Bench constituted by three judges (see section 6AA(5)). Both Hulme and Simpson JJ are on the present Bench and I am the third member.
The sentencing judge's statement of the facts of the offences in his remarks on sentence was largely derived from a facts sheet which had been admitted into evidence without objection in 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 Kotevski

Details

AGLC: R v Kotevski [1998] NSWCCA 1
Case: [1998] NSWCCA 1
Decision Date: 03 April 1998

CaseChat Overview and Summary

The appellant, Kotevski, was convicted of malicious wounding with intent to do grievous bodily harm to his estranged wife. He appealed against the sentence imposed by the sentencing judge, arguing that the judge failed to adequately consider his belief that his wife had treated him unfairly. Additionally, Kotevski contended that the sentencing judge should have determined the merits of the matrimonial disputes between him and his wife. The appeal was heard in the Supreme Court of Victoria.

The court considered whether the sentencing judge had failed to sufficiently take into account Kotevski's belief that his wife had treated him unfairly and whether the judge should have determined the merits of the matrimonial disputes. The court examined the sentencing principles relevant to the case, focusing on the need to balance the seriousness of the offence with any mitigating factors, including the appellant's state of mind at the time of the offence. The court also considered the appropriate role of the sentencing judge in assessing the merits of the matrimonial disputes.

The court found that the sentencing judge had appropriately considered Kotevski's belief that his wife had treated him unfairly, but had not adequately balanced this belief with the gravity of the offence. The court held that the sentencing judge should not have determined the merits of the matrimonial disputes, as this was not within the scope of the sentencing process. The court concluded that the sentence imposed was excessive and reduced it to a term of imprisonment with parole eligibility after serving one-third of the sentence.

The court ordered that the sentence imposed by the sentencing judge be reduced to a term of imprisonment of eight years, with parole eligibility after serving one-third of the sentence. The court further ordered that the appellant be given credit for time already served in custody.

Orders