R v Obradovic - [2018] VSC 805

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0198
S CR 2018 0199
S CR 2018 0200

THE QUEEN

STEFAN OBRADOVIC

DANIEL OBRADOVIC

STEPHEN MOTTA

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JUDGE:	CHAMPION J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 and 21 September 2018
DATE OF SENTENCE:	1 November 2018
CASE MAY BE CITED AS:	R v Obradovic & Ors
MEDIUM NEUTRAL CITATION:	[2018] VSC 805

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CRIMINAL LAW – Sentence – Affray – Common assault – Large group fighting at restaurant – Mid to low range of seriousness of affray – Pleas of guilty – No criminal history – Remorse – Strong prospects of rehabilitation – Weight to general deterrence and denunciation – Community Correction Orders – Unpaid community work – Sentencing Act 1991 (Vic) – Crimes Act 1958 (Vic) ss 195H, 320.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr K. Doyle	Office of Public Prosecutions
For Stefan Obradovic	Mr P. Morrissey SC	Anthony Isaacs & Associates
For Daniel Obradovic	Ms M. Tittensor	Anthony Isaacs & Associates
For Stephen Motta	Mr W. Toohey	Marcevski Lawyers

HIS HONOUR:

Introduction

Stefan Obradovic, Daniel Obradovic and Stephen Motta, you all pleaded guilty to the offence of affray, committed on 9 September 2017. Stefan Obradovic, you also pleaded guilty to the common law assault of Deni Dimovski and Pece Petrovski during that affray.

The maximum penalty for affray is five years’ imprisonment,[1] and the maximum penalty for common assault is five years’ imprisonment.[2]
[1]Crimes Act 1958 (Vic) s 195H.
[2] Crimes Act 1958 (Vic) s 320.

Circumstances of the offending

The offences to which you have each pleaded guilty occurred at a licensed restaurant in Caroline Springs.

On Friday 8 September 2017, there was a social function at the restaurant, organised by Deni Dimovski. The three of you arrived at the function soon after midnight and socialised amongst yourselves and others. Shortly before 2.00am, the lights were turned on and staff commenced clearing the tables. At this time, there were approximately 30 patrons still inside the dining area.

Shortly after 2.00am, Stefan Obradovic tipped two half full bottles of beer onto a dining room table. A few minutes later, Daniel Obradovic picked up a glass and threw it at the back wall of the dining room, where it smashed. There is no apparent reason either of you did these things.

Mr Dimovski then walked over to your group and reportedly asked for things not to be broken. It is not suggested that he was threatening. A conversation ensued, with Mr Dimovski continuing to stand amongst your group of people. Stefan Obradovic then approached him from behind, and they had a brief conversation.

During this conversation, Daniel Obradovic moved quickly through bystanders towards Mr Dimovski and shoved him to the chest. He stumbled as a result. A number of his friends came over to intervene or assist, at which point the affray commenced.

The affray involved a large number of patrons fighting and struggling amongst each other…

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 Obradovic

Details

AGLC: R v Obradovic [2018] VSC 805
Case: [2018] VSC 805
Decision Date: 1 November 2018

CaseChat Overview and Summary

The defendants, Obradovic and associates, were found guilty of engaging in an affray at a restaurant, along with counts of common assault, by the County Court of Victoria. The incident, which involved a large group fight, led to significant legal consequences. The nature of the dispute revolved around the sentencing of the defendants, considering the severity of the affray and the individual roles played by each defendant. The court had to navigate complex legal principles to determine an appropriate sentence.

The central legal issues the court had to decide included the appropriate range of seriousness for the affray and how to balance the various sentencing considerations, such as the nature and circumstances of the offence, the defendants’ criminal history, their remorse, and their prospects of rehabilitation. The court also had to consider the principles of general deterrence and denunciation in sentencing. The defendants pleaded guilty, which was a factor in the sentencing decision, but their lack of prior criminal history and expressed remorse were also significant considerations.

The court determined that the seriousness of the affray fell within the mid to low range, given the large group fight and the physical assaults involved. Despite the defendants' guilty pleas and apparent remorse, the court placed considerable weight on the need for general deterrence and denunciation. The court concluded that community correction orders, including periods of unpaid community work, were appropriate. This decision reflected a balance between punishment and rehabilitation, taking into account the defendants’ lack of criminal history and their prospects of rehabilitation.

The final orders mandated that the defendants were to serve community correction orders, which included periods of unpaid community work and other specified conditions. This outcome aimed to address the community’s need for deterrence and denunciation while also providing an opportunity for the defendants to rehabilitate and reintegrate into society.

Orders