Legal Research
Cases
R v Novakovic

R v Novakovic

Case [2007] VSCA 145 6 July 2007

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 139 of 2006

THE QUEEN
	v
MILORAD NOVAKOVIC

---

JUDGES:	NETTLE, ASHLEY AND REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 June 2007
DATE OF JUDGMENT:	6 July 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 145

---

Criminal law – Sentence – Cancellation of driving licence and period of disqualification ordered on footing that crime committed “in connection with the driving of a motor vehicle” - Whether right to appeal against an order made under s 28(1) of the Road Safety Act 1986 – Whether a disqualification order under s 28(1)(b) is a “sentence” for the purpose of s 567(d) of the Crimes Act 1958 – Whether a substantial relation between the other offence and the driving of a motor vehicle – Whether sentence manifestly excessive - Appeal allowed only so as to make a different order under s 28(1)(b) of the Road Safety Act 1986.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr C B Boyce	Victoria Legal Aid

NETTLE JA:

This is an appeal against sentence imposed on the appellant on pleading guilty to counts of criminal damage, being a prohibited person in possession of an unlicensed firearm, and armed robbery. The details are set out in the reasons for judgment of Ashley JA which I have had the considerable advantage of reading in draft.

As will be seen, the appellant’s principal complaint is that the judge ought not to have made an order under s 28(1)(b) of the Road Safety Act 1986 to cancel the appellant’s licence to drive and to disqualify the appellant from obtaining a licence for six years. Alternatively, it is said that the period of disqualification was too long.

Other things being equal, the appeal might have been dealt with ex tempore. In the event, however, the Crown chose to put at the forefront of its contentions a proposition that there is no right to appeal under s 567 of the Crimes Act 1958 against an order under s 28(1)(b) of the Road Safety Act 1986. That has required us to consider our decision.

The essence of the Crown’s contention is that an order under s 28(1)(b) of the Road Safety Act is not a “sentence” within the meaning of s 566 of the Crimes Act. The Crown argues that, although such an order would be a sentence according to ordinary acceptation and, therefore, was within the inclusive statutory definition of a “sentence” until 1991, the current form of definition includes only those orders to which it expressly refers and so excludes all others.

I reject the argument. The definition of “sentence” is in terms an inclusive definition. Prima facie, therefore, it enlarges the ordinary meaning of “sentence”.[1] Admittedly, it also expressly includes some forms of order which may be sentences according to ordinary conceptions. According to some of the authorities, that opens the door to an argument that…

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 Novakovic

Details

AGLC: R v Novakovic [2007] VSCA 145
Case: [2007] VSCA 145
Decision Date: 6 July 2007

CaseChat Overview and Summary

In the case of R v Novakovic, the appellant was convicted of a criminal offence and sentenced to a fine, as well as the cancellation of his driving licence and a period of disqualification from driving, pursuant to section 28(1) of the Road Safety Act 1986. The appellant appealed against the order for the cancellation of his driving licence and the period of disqualification, arguing that the offence was not committed "in connection with the driving of a motor vehicle" and that the sentence was manifestly excessive. The Court of Appeal was required to determine whether the appellant had the right to appeal against the order, whether the disqualification order constituted a "sentence" for the purposes of section 567(d) of the Crimes Act 1958, whether there was a substantial relation between the other offence and the driving of a motor vehicle, and whether the sentence was manifestly excessive.

The Court of Appeal held that the appellant did have the right to appeal against the order made under section 28(1) of the Road Safety Act 1986, and that the disqualification order was indeed a "sentence" for the purposes of section 567(d) of the Crimes Act 1958. The court found that the offence was not committed "in connection with the driving of a motor vehicle" and that the appellant's driving had not played a significant role in the commission of the offence. However, the court found that the sentence was not manifestly excessive and that the appellant's driving licence should be cancelled and a period of disqualification ordered. The court allowed the appeal only to the extent of making a different order under section 28(1)(b) of the Road Safety Act 1986, ordering that the appellant's driving licence be cancelled and that he be disqualified from driving for a period of two years.

The final orders of the court were that the appeal be allowed only so as to make a different order under section 28(1)(b) of the Road Safety Act 1986, ordering that the appellant's driving licence be cancelled and that he be disqualified from driving for a period of two years. The court found that the appellant's driving had not played a significant role in the commission of the offence, but that the sentence was not manifestly excessive. The court also found that the appellant had the right to appeal against the order made under section 28(1) of the Road Safety Act 1986, and that the disqualification order constituted a "sentence" for the purposes of section 567(d) of the Crimes Act 1958.

Orders