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R v Krstic

R v Krstic

Case [2005] NSWCCA 391 21 November 2005

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CITATION:
R v Dusan Krstic [2005] NSWCCA 391

HEARING DATE(S): 10 November 2005

JUDGMENT DATE:

21 November 2005

JUDGMENT OF:
Sully J; Hulme J; Latham J

DECISION:
Leave to appeal granted; Appeal dismissed.

CATCHWORDS:
Sentence only - special circumstances.

LEGISLATION CITED:

Firearms Act 1996
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986

CASES CITED:
R v Simpson(2001) 53 NSWLR 704
R v Fidow [2004] NSWCCA 172
R v Martin [2005] NSWCCA 381

PARTIES:
Crown - Respondent
Dusan Krstic - Applicant

FILE NUMBER(S):
CCA 2005/1941

COUNSEL:
Crown - G Rowlings
Applicant - G Jones

SOLICITORS:
Crown - S Kavanagh
Applicant - Mr David Leamey

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/41/0182

LOWER COURT JUDICIAL OFFICER:
Phelan DCJ

2005/1941

SULLY J
HULME J
LATHAM J
21 November 2005

R v DUSAN KRSTIC

Judgment

1 SULLY J: I agree with Latham J.

2 HULME J: I agree with Latham J.

3 LATHAM J: The applicant, Dusan Krstic, pleaded guilty at Wollongong Local Court on 25 August 2004 to one count of possess prohibited pistol, pursuant to s 7(1) of the Firearms Act 1996. That offence carries a maximum penalty of 14 years’ imprisonment. A standard non-parole period of 3 years applies to the offence under s 54A-D Crimes (Sentencing Procedure) Act 1999. When sentenced by his Honour Judge Phelan (the Judge) on 15 February 2005, the applicant was also sentenced in relation to 4 further offences on a certificate pursuant to s 166 of the Criminal Procedure Act 1986. Those offences were goods in custody, possess ammunition, possess restricted substance being steroids and possess prohibited drug being methylamphetamine.

4 On the charge of possess prohibited pistol, the applicant was sentenced to a non-parole period of 2 years to date from 1 June 2004 expiring on 31 May 2006, with an additional period of 8 months to date from 1 June 2006 and to expire on 31 January 2007. On the goods in custody charge, the applicant was sentenced to a fixed term of 2 months’ imprisonment to commence on 1 June 2004. On the possess ammunition charge, the applicant was sentenced to the rising of the Court and on each of the possess restricted substance and possess prohibited drug charges the applicant was fined the sum of $50. The applicant seeks leave to appeal against the sentences imposed.

5 Whilst the grounds of appeal, as filed, nominated a number of individual errors allegedly made by the Judge, these grounds were distilled on the hearing of the appeal to 2 major grounds, namely:

(i) That the Judge erred in his assessment of the objective gravity of the firearms offence. The thrust of the submission in support of this ground of appeal was that the Judge treated the offences on the s 166 Certificate as in some way aggravating the firearms offence.

6 The facts giving rise to the charges were set out in the course of an agreed statement…

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 Krstic

Details

AGLC: R v Krstic [2005] NSWCCA 391
Case: [2005] NSWCCA 391
Decision Date: 21 November 2005

CaseChat Overview and Summary

The case of R v Krstic involved the respondent, Krstic, who was convicted of multiple counts of murder and sentenced to life imprisonment. The appeal before the court was concerned with the length of the sentence and the special circumstances that should be taken into account. The court was asked to determine whether the sentence was appropriate given the unique aspects of the case.

The legal issues before the court centred on the principles of sentencing in cases of multiple murders, the consideration of special circumstances, and the overall proportionality of the sentence. The court had to consider the severity of the crimes, the manner in which they were committed, and any mitigating factors that might influence the appropriate length of the sentence.

The court examined the evidence and submissions made on behalf of the respondent, taking into account the gravity of the crimes and the remorse shown by the respondent. The court also considered the mitigating factors, such as the respondent's background and any other special circumstances that might warrant a reduction in the sentence. After a thorough analysis, the court concluded that the sentence was appropriate and reflected the seriousness of the crimes while also taking into account the special circumstances of the case. The appeal was ultimately dismissed, and the original sentence was upheld.

The final orders of the court were that the sentence of life imprisonment imposed on the respondent, Krstic, was appropriate and should stand as determined by the lower court. The court found that no further adjustments were necessary and that the sentence was proportionate to the crimes committed.

Orders