R v Nikolich - [2001] VSCA 128

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 2 of 2000

THE QUEEN
	v.
GEORGE NIKOLICH

---

JUDGES:	WINNEKE, P., CHARLES and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 August 2001
DATE OF JUDGMENT:	2 August 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 128

---

Criminal law - Sentencing - Multiple offences of armed robbery, burglary and false imprisonment - Total effective sentence on three separate presentments of 7½ years - Applicant's prior convictions - Assistance to police and prosecuting authorities - Pleas of guilty - Informer's discount - Disparity with sentences imposed on three co-offenders - No manifest excess - Application dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D.G. Just	Ms Kay Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr M.R. Simon	Jonathan Kemp & Associates

WINNEKE, P.: I will ask Charles, J.A. to deliver the first judgment.

CHARLES, J.A.:

On 19 January 1998 the applicant, who is now aged 32, was presented in the County Court at Melbourne before Judge McInerney and pleaded guilty to all counts on two presentments, K00719250 and C9700541/A. I shall call presentment K00719250 "the first presentment", and presentment C9700541/A "the second presentment". On 10 March 1998 the applicant pleaded guilty to counts 2 and 3 in presentment 9700438, which I shall call "the third presentment". I shall deal with each of these presentments in turn.

The first presentment contained seven counts: count 1, aggravated burglary, for which the maximum penalty was then 15 years' imprisonment; counts 2 and 3, armed robbery, the maximum penalty being 20 years; count 4, robbery, for which the maximum was 12½ years; and counts 5, 6 and 7, false imprisonment, a common law offence for which the penalty is at large.

The second presentment contained ten counts: count 1, possession of cannabis L, for which the maximum was one year; count 2, attempting to obtain property by deception, the maximum being 7½ years; counts 3, 4, 5, 6, 9 and 10, burglary, the maximum being 10 years' imprisonment; count 7, conspiracy to commit robbery, the maximum being 12½ years' imprisonment; and count 8, conspiracy to commit an armed robbery, for which the maximum was 20 years' imprisonment.

Count 2 of the third presentment related to an offence of blackmail, for which the maximum was 12½ years, and count 3, theft, the maximum being 10 years' imprisonment.

On 29 January 1998, Judge McInerney sentenced the applicant on the first presentment, on count 1 to 58 months', on counts 2 and 3 to 72 months', and on counts 4, 5, 6 and 7 to 36 months' imprisonment. The total effective sentence was 72 months' imprisonment. On the second presentment his Honour on the same day sentenced the applicant on counts 1, 2 and 4 to 10 months', on counts 3, 5, 6, 9 and 10 to 20 months', on count 7 to 30 months' and on count 8 to 40 months' imprisonment. Orders for cumulation were made as to three months of the sentence imposed on…

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 Nikolich

Details

AGLC: R v Nikolich [2001] VSCA 128
Case: [2001] VSCA 128
Decision Date: 2 August 2001

CaseChat Overview and Summary

In the case, the respondent, Nikolich, appealed against the sentence imposed by the sentencing judge in the Supreme Court of Victoria. Nikolich was convicted of multiple offences of armed robbery, burglary, and false imprisonment, following three separate incidents. The total effective sentence imposed on three separate presentments was 7½ years. Nikolich had prior convictions, but he provided assistance to the police and prosecuting authorities. He entered pleas of guilty, which led to an informer's discount, and his co-offenders received sentences that varied from each other and from the sentence imposed on Nikolich. The primary legal issue before the court was whether the sentence imposed by the sentencing judge was manifestly excessive.

The court examined the principles of sentencing and the factors that the sentencing judge had considered in determining the sentence. The court noted that the sentencing judge had appropriately considered Nikolich's guilty pleas, his assistance to the police, and the disparity in sentences between Nikolich and his co-offenders. The court found that the sentencing judge had given appropriate weight to the informer's discount and had not erred in the exercise of discretion. The court concluded that the sentence imposed was not manifestly excessive, and therefore dismissed the appeal. The court emphasised the importance of the sentencing judge's discretion and the need to avoid uniformity in sentencing, as each case must be considered on its own merits.

In light of the above, the court dismissed the appeal and upheld the sentence imposed by the sentencing judge. The court emphasised the importance of the sentencing judge's discretion and the need to avoid uniformity in sentencing. The court also noted that it was not the role of the appellate court to substitute its own view of the appropriate sentence for that of the sentencing judge, provided that the sentence was within the permissible range. The court did not make any orders for costs.

Orders