R v Popovic - [2003] NSWCCA 103

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v POPOVIC [2003] NSWCCA 103

FILE NUMBER(S):
60009/02

HEARING DATE(S): 25 March 2003

JUDGMENT DATE: 25/03/2003

PARTIES:
Regina (Respondent)
Zlatan Popovic (Applicant)

JUDGMENT OF: Spigelman CJ Hulme J Buddin J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70069/99

LOWER COURT JUDICIAL OFFICER: O'Keefe J

COUNSEL:
M C Ramage QC (Applicant)
D C Frearson (Respondent)

SOLICITORS:
Peter Ash & Associates (Applicant)
S E O'Connor (Respondent)

CATCHWORDS:
CRIMINAL LAW - SENTENCE - Application for leave to appeal from sentence - where fixed-term sentences imposed - where unsuccessful attempt to obtain assistance against deceased from police - whether sentences imposed for manslaughter and malicious wounding within reasonable exercise of sentencing discretion - whether sentencing judge minimised degree of provocation - where challenged findings of fact not of central significance to sentencing process

LEGISLATION CITED:
Criminal Appeal Act 1912, s6(3)

DECISION:
Leave to appeal granted, appeal dismissed [97].

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60009/02
SPIGELMAN CJ
HULME J
BUDDIN J
Tuesday 25 March 2003

REGINA v Zlatan POPOVIC

Judgment

SPIGELMAN CJ: The Applicant seeks leave to appeal from sentences imposed upon him by O’Keefe J, after convictions on nine counts of malicious wounding and one count of manslaughter.
On 22 February 1999, the Applicant discharged two shots from a double barrel shotgun in Kiera Street, Wollongong, and shot and killed Mr Vedran Ravnjak (“the deceased”). There were a significant number of people in the vicinity of Keira Street and nine people were wounded. The Applicant was charged with murder.
At his trial he was found guilty of each malicious wounding charge. However, the jury was unable to agree on the murder. A second trial on the murder count led to the discharge of the jury. The Crown subsequently indicated that it would be prepared to accept a plea to manslaughter on the basis of provocation. Such a plea was entered and then accepted in full discharge of the indictment.
Background Facts
The development of an acrimonious relationship between the Applicant and Mr Ravnjak is at the centre of these tragic events. It appears that Mr Ravnjak had an association with Ms Maria Nacin. She broke up with him and, it emerged, she had falsely informed the deceased that she had developed an association with the Applicant. There then followed a long period of confrontation between the Applicant and the deceased.
They had previously been friends, but the friendship ceased and a course of harassment by Mr Ravnjak of the Applicant commenced. There were telephone calls in which the Applicant was threatened by the deceased.
On 18 January 1999, there was confrontation between the two men, during the course of which Mr Ravnjak said to the Applicant: “I am going to kill you when we get outside”. This confrontation culminated in a fight, but at this stage the Applicant claims not to have taken the threats seriously. The Applicant claimed in evidence before the sentencing judge that during the course of…

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 Popovic

Details

AGLC: R v Popovic [2003] NSWCCA 103
Case: [2003] NSWCCA 103
Decision Date: 25 March 2003

CaseChat Overview and Summary

The Applicant, Mr Popovic, appealed against his sentence, arguing that it was excessive and did not appropriately reflect the mitigating circumstances, particularly the degree of provocation he had experienced. The case came before the court, which had to determine whether the sentencing judge had exercised his discretion reasonably, particularly in relation to the level of provocation and the impact on the Applicant's actions. The Applicant also challenged certain factual findings made by the sentencing judge, arguing they were incorrect and had influenced the sentencing decision.

The court examined whether the sentences imposed for manslaughter and malicious wounding were within the reasonable exercise of the sentencing judge's discretion. The court noted that while the Applicant had experienced significant provocation, including threats and harassment, the sentencing judge had considered these factors. The court held that the sentencing judge had appropriately balanced the aggravating and mitigating factors, including the degree of provocation, in determining the sentences. The court found that the sentences were not manifestly excessive and reflected a proper consideration of the circumstances. The challenged findings of fact were not of central significance to the sentencing process.

The court dismissed the appeal against sentence, affirming that the sentences imposed were within the appropriate exercise of the sentencing judge's discretion. The court confirmed that the sentences appropriately reflected the circumstances of the case, including the degree of provocation experienced by the Applicant.

No further orders were made by the court.

Orders

Orders of the court

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Background

Background to the litigation

At his trial he was found guilty of each malicious wounding charge. However, the jury was unable to agree on the murder. A second trial on the murder count led to the discharge of the jury. The Crown subsequently indicated that it would be prepared to accept a plea to manslaughter on the basis of provocation. Such a plea was entered and then accepted in full discharge of the indictment.Background Facts The development of an acrimonious relationship between the Applicant and Mr Ravnjak is at the centre of these tragic events. It appears that Mr Ravnjak had an association with Ms Maria Nacin. She broke up with him and, it emerged, she had falsely informed the deceased that she had developed an association with the Applicant. There then followed a long period of confrontation between the Applicant and the deceased. They had previously been friends, but the friendship ceased and a course of harassment by Mr Ravnjak of the Applicant commenced. There were telephone calls in which the Applicant was threatened by the deceased. On 18 January 1999, there was confrontation between the two men, during the course of which Mr Ravnjak said to the Applicant: “I am going to kill you when we get outside”. This confrontation culminated in a fight, but at this stage the Applicant claims not to have taken the threats seriously. The Applicant claimed in evidence before the sentencing judge that during the course of this fight, Mr Ravnjak produced a knife. However, his Honour did not accept that evidence and concluded that the fight was a fist fight. As a result of the fight, the deceased spent some days in hospital. After the deceased was released from hospital, he telephoned the Applicant again and threatened him. Again he said he would kill him. The Applicant says that, at this stage, he started to believe that the deceased was capable of doing what he said and he became scared. On a subsequent occasion at a nightclub, on either 25 or 26 January 1999, Mr Ravnjak pointed to the Applicant and made a motion indicating that he intended to slit the Applicant’s throat. The sentencing judge accepted that about this time the Applicant was beginning to think that Mr Ravnjak would be capable of carrying out his threats and may do so. Thereafter, there were many threatening phone calls from Mr Ravnjak to the Applicant, during the course of which Mr Ravnjak threatened to kill the Applicant’s mother and his son. The Applicant reacted strongly to these statements and threatened the deceased. The sentencing judge concluded:“Although I am firmly of the opinion that there is some exaggeration on the part of the prisoner in his evidence … I am satisfied on the balance of probabilities that threats of a kind that were very upsetting, disturbing and quite worrying were made by Mr Ravnjak to the prisoner. They included threats to kill the prisoner, his mother and his son.”The prisoner’s reaction was that he was angry and scared and that he felt ’like a cat, a cat when it stands and its spine just goes up. I felt like all my hairs just gone up into my head, my body’. I accept this evidence and further accept that by this time he had come to believe that Mr Ravnjak was capable of carrying out his threats.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

SPIGELMAN CJ HULME J

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Ratio Decidendi

Legal Principle Established

Established by: SPIGELMAN CJ HULME J

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