R v Mujedinovski - [2003] VSCA 212

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 184 of 2003

THE QUEEN
	v.
RICMON MUJEDINOVSKI

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JUDGES:	WINNEKE, P., VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 December 2003
DATE OF JUDGMENT:	4 December 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 212

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Criminal Law – Sentence – Burglary and theft – Whether appellant’s conduct influenced by his desire to maximise his profits or by his gambling problem – Whether sentencing judge erred in imposing disparate sentences upon appellant and co-offender – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R.A. Elston	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr O.P. Holdenson, Q.C.	Stephen Andrianakis & Associates

WINNEKE, P.:

I will invite Vincent, J.A. to give the first judgment in this appeal.

VINCENT, J.A.:

The appellant pleaded guilty in the County Court at Melbourne on 5 June 2003 to one count of burglary (count 1) and one count of theft (count 2). He also pleaded guilty to two summary charges relating to the unlicensed possession of a firearm and the unlicensed possession of ammunition.

After hearing a plea in mitigation of penalty, on 19 June 2003 the learned sentencing judge imposed –

On count 1, imprisonment for a period of two years and six months.
On count 2, imprisonment for a period of two years and six months.

No order for cumulation was made and accordingly the total effective sentence imposed was two years and six months' imprisonment, in respect of which his Honour fixed a non-parole period of 12 months. In relation to the offence of possession of a firearm without a licence, the appellant was fined $400, and for the possession of ammunition without a licence, a fine of $100. No complaint has been made concerning the penalties imposed for the summary offences.

Having been granted leave to do so the appellant seeks to overturn the sentences imposed upon him for the two indictable offences on three grounds:

“1.The learned sentencing judge erred in law by unfairly and unduly discriminating against the appellant in violation of the principle of parity.

2. The learned sentencing judge erred in law by:
(a)failing to accept the uncontroverted expert evidence of the applicant’s pathological gambling addiction as a relevant mitigating factor;
(b)failing to place any weight on the applicant’s pathological gambling addiction; and
(c)denying the applicant natural justice by failing to inform the applicant that the expert evidence of a gambling addiction would be rejected in the absence of direct oral evidence of a gambling addiction from him.

6.The learned sentencing judge erred in law by passing a sentence which was manifestly excessive.”

Three further grounds contained in the appellant’s Notice of Application have been abandoned and accordingly need not be addressed.

The Background

Jacob Gilroy was the warehouse manager of Lynch Flowers Pty Ltd, a company which operated as a flower wholesaler to a number of large retail outlets in Victoria when, in about March or April 2000, he was approached by a person…

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 Mujedinovski

Details

AGLC: R v Mujedinovski [2003] VSCA 212
Case: [2003] VSCA 212
Decision Date: 4 December 2003

CaseChat Overview and Summary

In the case of R v Mujedinovski, the appellant was convicted of burglary and theft. The court was tasked with determining whether the appellant’s criminal conduct was influenced by his desire to maximise profits or by his gambling addiction. Furthermore, the court examined whether the sentencing judge erred in imposing different sentences on the appellant and his co-offender. The High Court of Australia was the appellate court in this instance.

The central legal issues revolved around the nature of the appellant's motivations and the appropriateness of the disparity in sentencing between the appellant and his co-offender. The appellant argued that his gambling addiction played a significant role in his criminal activities and that this should have warranted a more lenient sentence. Conversely, the prosecution maintained that the appellant's actions were driven by a desire to maximise profits, and that the sentencing judge had appropriately considered all relevant factors.

The court reviewed the sentencing principles and examined the evidence presented regarding the appellant's gambling problem and its influence on his criminal conduct. It was determined that the sentencing judge had adequately considered the appellant’s personal circumstances and the nature of the offences. The court found that the disparity in sentencing was justified based on the differing roles and contributions of the appellant and his co-offender to the crimes committed. The appeal was dismissed, upholding the original sentence imposed by the lower court.

The final orders confirmed the dismissal of the appellant's appeal and upheld the sentence as determined by the sentencing judge. The court maintained that the sentence appropriately reflected the seriousness of the crimes and the individual circumstances of the appellant.

Orders