R v Manojlovic - [2020] NSWDC 221

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Manojlovic [2020] NSWDC 221
Hearing dates: 9 April 2020
Date of orders: 09 April 2020
Decision date: 09 April 2020
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
An aggregate term of imprisonment of 3 years, 9 months with a non-parole period of 22 months: at [55].

Catchwords: CRIME — Sexual offences — Aggravated sexual assault — Victim under authority
CRIME — Sexual offences — Indecent assault — Circumstances of aggravation
SENTENCING — Mitigating factors — Good character — Rehabilitation
SENTENCING — Relevant factors on sentence — Establishing relevant matters — Factual basis for sentence — General principles — Multiple offences — Accumulation, concurrency and totality — Objective seriousness
SENTENCING — Subjective considerations on sentence — Extra curial punishment — Mental illness Hardship
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: BP v R [2010] NSWCCA 159
Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
Imbornone v R [2017] NSWCCA 144
R v Blanco (1999) 106 A Crim R 303
R v Edwards (1996) 90 A Crim R 510
R v Olbrich (1999) 199 CLR 270
R v Qutami (2001) 127 A Crim R 369
Tiatoko v R [2020] NSWCCA 43
WLP v R [2014] NSWCCA 183
Texts Cited: Nil
Category: Sentence
Parties:
Regina (Crown)
Alexander Manojlovic (Offender)
Representation:
Ms N Keay (Crown Prosecutor)
Mr I Lloyd QC (Counsel for the Offender)

File Number(s): 2018/215178
Publication restriction: Pursuant to section 578A of the Crimes Act 1900 a non-publication order applies to any matter that may identify the victim.

Judgment

Alexander Manojlovic, now 39 years of age, was found guilty by jury following a trial in February 2020, of two counts of indecent assault with a person under authority and three counts of sexual assault of a person under authority. The first two counts of indecent assault with a person under authority contrary to s 61M of the Crimes Act1900, carry a maximum penalty of seven years imprisonment with a standard non‑parole period of five years; counts 3, 5 and 7 on the indictment under s 61J(1) of the Crimes Act 1900, carry a maximum penalty of 20 years imprisonment with a standard non‑parole period of ten years.
The offender has been in custody since the day of the jury verdict on 10 February 2020, and it is common ground that a term of imprisonment should commence on that day. Mr Lloyd QC for the offender does not submit that any alternative to fulltime custody is appropriate.
It is necessary for me to take into account all the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 in carrying out the sentencing exercise.
The facts as outlined by the Crown as consistent with the jury's verdicts have not been the subject of any challenge by Mr Lloyd. They involve a Year 12 student, then aged 17, who attended Bowral High…

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 Manojlovic

Details

AGLC: R v Manojlovic [2020] NSWDC 221
Case: [2020] NSWDC 221
Decision Date: 09 April 2020

CaseChat Overview and Summary

In the case of R v Manojlovic, the appellant faced charges of aggravated sexual assault and indecent assault, with the victim being in a position of authority. The case was heard in a court of law, where the accused was found guilty on all counts. The appeal centred on the severity of the sentence imposed and whether it was appropriate given the circumstances of the case.

The legal issues before the court were the appropriate application of sentencing principles to the appellant's case, including the objective seriousness of the offences, the relevance of mitigating factors such as good character and rehabilitation prospects, and the principle of totality in sentencing for multiple offences. The court also considered the impact of extra-curial punishment, mental illness, and any associated hardship.

In its judgment, the court emphasised the need to balance the objective seriousness of the crimes with the appellant's personal circumstances. It found that while the offences were severe, the appellant's good character and potential for rehabilitation were significant mitigating factors. The court also noted the principle of totality in sentencing, which required the court to avoid excessive punishment by considering the cumulative effect of the sentences imposed. After carefully weighing these factors, the court determined that the original sentence was appropriate.

The court upheld the sentence of three years and nine months imprisonment with a non-parole period of 22 months. This decision reflects the court's approach to balancing the objective seriousness of the crimes with the appellant's personal circumstances and the need to adhere to the principle of totality in sentencing.

Orders

Orders of the court

An aggregate term of imprisonment of 3 years, 9 months with a non-parole period of 22 months: at [55].

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	R v Manojlovic [2020] NSWDC 221
Hearing dates:	9 April 2020
Date of orders:	09 April 2020
Decision date:	09 April 2020
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	An aggregate term of imprisonment of 3 years, 9 months with a non-parole period of 22 months: at [55].
Catchwords:	CRIME — Sexual offences — Aggravated sexual assault — Victim under authority CRIME — Sexual offences — Indecent assault — Circumstances of aggravation SENTENCING — Mitigating factors — Good character — Rehabilitation SENTENCING — Relevant factors on sentence — Establishing relevant matters — Factual basis for sentence — General principles — Multiple offences — Accumulation, concurrency and totality — Objective seriousness SENTENCING — Subjective considerations on sentence — Extra curial punishment — Mental illness Hardship
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	BP v R [2010] NSWCCA 159 Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 Imbornone v R [2017] NSWCCA 144 R v Blanco (1999) 106 A Crim R 303 R v Edwards (1996) 90 A Crim R 510 R v Olbrich (1999) 199 CLR 270 R v Qutami (2001) 127 A Crim R 369 Tiatoko v R [2020] NSWCCA 43 WLP v R [2014] NSWCCA 183
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown) Alexander Manojlovic (Offender)
Representation:	Ms N Keay (Crown Prosecutor) Mr I Lloyd QC (Counsel for the Offender)
File Number(s):	2018/215178
Publication restriction:	Pursuant to section 578A of the Crimes Act 1900 a non-publication order applies to any matter that may identify the victim.