R v Majstrovic - [2000] NSWCCA 420

CITATION: R v MAJSTROVIC [2000] NSWCCA 420

FILE NUMBER(S): CCA 60775 of 1999

HEARING DATE(S): 9 October 2000

JUDGMENT DATE:
9 October 2000

PARTIES :

Regina
Peter Majstrovic

JUDGMENT OF: Hulme J at 1; Barr J at 28

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/21/3084

LOWER COURT JUDICIAL
OFFICER : Shadbolt DCJ

COUNSEL : Crown: RD Cogswell SC
Appellant: PJD Hamill

SOLICITORS: Crown: SE O'Connor
Appellant: TA Murphy

DECISION: Leave to appeal granted; Appeal allowed; Sentence of Judge Shadbolt quashed; Applicant sentenced to imprisonment for a term of 6 years from 28 March 1999 concluding on 27 March 2005; The court fixes a non-parole period of 3 years commencing on 28 March 1999 and expiring on 27 March 2002; Applicant eligible for parole on 27 March 2002

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IN THE COURT OF
CRIMINAL APPEAL

No: 60775/99

HULME J
BARR J

Monday, 9 October 2000

REGINA -v- Peter MAJSTROVIC

JUDGMENT

1    HULME J: On 28 March 1999 this applicant for leave to appeal threatened a saleswoman at a bottle shop at Casula with a pistol and robbed her of $270. There is evidence of I think $450, but the difference is not significant for present purposes.
2    The registration number of the car he was driving was taken and he was shortly afterwards arrested, interviewed, and admitted his guilt. In due course he pleaded guilty to a charge of armed robbery, an offence carrying a maximum penalty of twenty years' imprisonment.
3    On 26 November 1999 Judge Shadbolt sentenced the applicant to penal servitude for a minimum term of four and a half years commencing on the day of the applicant's arrest, namely 28 March 1999, and an additional term of eighteen months.
4 The applicant seeks leave to appeal against sentence, and in written submissions advanced on his behalf four matters are relied on. The first is what is said to have been an error in his Honour's understanding of the applicant's record. The second is inadequate recognition of the applicant's plea of guilty. The third is inadequate recognition of the fact that, on the unchallenged statements of the applicant, the pistol used was a toy. Finally it was submitted that in light of all of these matters the sentence imposed was too high by comparison with the range of sentences identified in the guideline judgment of R v Henry & Ors (1999) 46 NSWLR 346.
5    In oral submissions there was some expansion of the matters relied upon. In particular, issue was taken with statements made in the course of his Honour's remarks on sentence to the effect that the applicant's evidence was "in reality a litany of complaint and a welter of self-justification, much of which can be seen in his psychological report", and the absence of reference by his Honour to some other matters.
6    In its terms the first ground is in my view made out. His Honour, in referring to the applicant's record, stated that he has two…

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 Majstrovic

Details

AGLC: R v Majstrovic [2000] NSWCCA 420
Case: [2000] NSWCCA 420
Decision Date: 9 October 2000

CaseChat Overview and Summary

In the case of R v Majstrovic, the appellant, Peter Majstrovic, sought leave to appeal against the sentence imposed by Judge Shadbolt, who sentenced him to penal servitude for armed robbery. The appellant's primary arguments focused on the perceived errors in the sentencing process, including the judge's misunderstanding of the appellant's criminal record, inadequate recognition of his guilty plea, failure to consider that the weapon used was a toy, and the overall severity of the sentence compared to guideline judgments.

The court identified several issues that needed to be addressed. Firstly, the judge's misunderstanding of the appellant's criminal record, which inaccurately included two breaches of parole that were later deemed invalid. Secondly, there was an apparent oversight in acknowledging the benefit of the appellant's early guilty plea. Thirdly, the court failed to consider that the weapon used in the robbery was a toy, which lessened the physical risk but still created significant fear. Additionally, the court's characterization of the appellant's evidence as a "litany of complaint and a welter of self-justification" was deemed inaccurate and potentially prejudicial.

The court found that these errors warranted the grant of leave to appeal and allowed the appeal. The original sentence was quashed, and the appellant was sentenced to six years in prison, with a non-parole period of three years. The court's reasoning highlighted the need for accurate factual findings and proper consideration of mitigating factors. The final orders mandated a total sentence of six years, with a non-parole period of three years, providing the appellant with eligibility for parole after serving the non-parole period.

Orders