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 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.”
The Applicant contacted Mr Ravnjak’s father to seek assistance to prevail upon his son to stop making threats. Nevertheless, frequent threatening phone calls from Mr Ravnjak continued.
There was an incident just a few days before the actual killing. Mr Ravnjak went to the vicinity of the home of the Applicant’s mother and was seen by him in the street. The Applicant then took a .357 Magnum pistol, which he had purchased, rushed out of the premises, chased Mr Ravnjak and fired five shots at him. The Applicant gave evidence he thought that the deceased had a pistol in his hand on this occasion.
The sentencing judge noted that the Applicant had not mentioned any such pistol in his statements to the police, nor had he mentioned it to either of his treating psychiatrists. His Honour did not accept the evidence of the Applicant on this matter. Nevertheless, his Honour had no doubt that Mr Ravnjak had come to the house of the Applicant’s mother and that the Applicant had fired a gun on that occasion.
The Applicant retrieved a sawn off shot gun, which he had purchased some eight to twelve months before the shooting, from its hiding place. Thereafter he kept the gun, together with some ammunition, at close hand. Furthermore, he had purchased the Magnum pistol, to which I have referred, about one week before the shooting.
The sentencing judge noted that in 1992 the Applicant had pleaded guilty to illegally possessing firearms and had been fined.
The sentencing judge went on to find that from early February until the day before the killing, the deceased made further numerous threatening telephone calls to the Applicant. His Honour concluded:
“There was thus a basis for the belief that I am satisfied the prisoner had by that time formed that Mr Ravnjak was capable of carrying out his threats and well may do so.”
The Applicant gave evidence that he carried the shotgun with him during this period, including on the morning of the killing. In the course of his record of interview the following was said:
“Q.What was your intention if you had found Vedran Ravnjak on one of those occasions with your loaded firearm?
A. I would have shot him.
Q.And what was your intention when you shot him? Was it to wound him or was it to kill him?
A.I don’t know. First thought probably just wound him. But, that particular day I wanted to kill him.”
On 22 February 1999, the Applicant had his shotgun with him. He and a male companion drove to Keira Street, Wollongong, in the afternoon. When he got out of the car, the Applicant saw Mr Ravnjak on the western side of Keira Street. The Applicant reached back into his vehicle, took out the backpack in which he had the shotgun and ammunition. He crossed to the eastern side of Keira Street. When he reached the footpath on the east, the Applicant called out to Mr Ravnjak.
According to his Honour’s finding, the deceased was then walking diagonally from west to east across Keira Street towards the north. The deceased’s back was half turned away from the Applicant, who was, by that time, on the eastern side of Keira Street. There was a verbal exchange between the Applicant and Mr Ravnjak, which was initiated by the Applicant and was quite short. Independent evidence did not establish what was said.
I should note the version propounded by Mr Ramage, who appears for the applicant, was that it was Mr Ravnjak who had originally called out the Applicant’s name and initiated the conversation.
In the record of interview, the Applicant said this:
“… I asked him in Serbian, the things he said over the phone and he, you know, ‘Are you gonna commit to them, going to do it?’ And he had a smile on his face and he went, ‘Yeah’, so, you know, if you translate it bloody oath you know … And that’s when I snapped …
Darkness fell over my eyes. I took it out of my bag. He watched me load it. I loaded it, took it up; he didn’t really notice what it was and sort of came forward towards me … I swung the gun over. I hit him with the gun, that’s when the first shot fired …”
His Honour concluded that it was clear that the deceased was not carrying anything in his hands. He had no bag with him and was wearing loose-fitting clothing. His Honour noted that the Applicant claimed that he thought the loose clothing might possibly have concealed a knife. His Honour said that this was not mentioned in the record of interview at the police station, or at the demonstration which took place at the scene. That is not challenged by Mr Ramage.
His Honour concluded:
“When considered in the light of the plea entered on behalf of the prisoner I am satisfied beyond any doubt that the killing of Mr Ravnjak by the prisoner did not occur in circumstances in which the prisoner was in any actual fear on the particular occasion for his own life or bodily well being. He was, however, provoked to do what he did largely by the threats made by the deceased concerning the prisoner’s mother and son. That he was provoked is the effect of the plea.”
Two shots were fired in quick succession within seconds. The first shot caused injury to nine bystanders who were spread along the eastern side of Keira Street at various distances up to some fifty metres. They included men, women and a child. They suffered a number of different injuries. None of the wounds resulted in serious and permanent disablement, though in one case, it produced certain ongoing effect, which were debilitating.
The second shot was discharged when Mr Ravnjak was approximately a metre from the Applicant. The contents of that cartridge did not have an opportunity to scatter. They entered the abdomen of the deceased and the pellets spread out inside him with fatal effect.
After the shooting, the Applicant and his companion slowly walked back across the western side of Keira Street and left the scene. The Applicant declined to identify his companion. An eyewitness observed the Applicant and his companion walking slowly, placing the gun in the bag, getting into the car and driving away.
The Applicant was at large for about four days, during which time he gave an interview to the media concerning the events of the day. He expressed no remorse for the killing of Mr Ravnjak, but he did express some remorse with respect to the shooting of the bystanders.
His Honour, after reciting the above facts concluded, correctly, that “objectively the circumstances of the killing were serious.” He did note, however, that the plea of guilty to manslaughter based on provocation meant that the act causing death was committed as a result of the loss of self-control on the part of the Applicant, which was induced by the conduct of the deceased.
His Honour concluded:
“Having regard to the circumstances in which the killing occurred, the relative situations of the deceased and the prisoner on the day in question, such of the evidence given by the prisoner as I have said I accept, and the plea accepted by the Crown, I am satisfied beyond a reasonable doubt that the prisoner intended to kill Mr Ravnjak, but that such intention was a consequence of the provocation proffered by Mr Ravnjak over a period of time and finally on the day of the shooting.”
That reference to “on the day of the shooting” is no doubt a reference to a statement which the Applicant attributed to the deceased to the effect that he indicated in Serbo/Croatian, something roughly translated as “bloody oath” to a question as to whether he intended to carry out his threats.
The Reasons of the Sentencing Judge
In his reasons, his Honour turned first to the sentence for manslaughter. He noted the wide variety of circumstances in which the crime of manslaughter is committed. He noted that the felonious taking of a human life was recognised as a serious crime. He said the factual content and circumstances of the crime may significantly reduce the blameworthiness of the perpetrator.
With respect to the convictions on nine charges of malicious wounding, his Honour noted that the charges did not involve an intention to wound. His Honour noted that in the case of these changes, unlike the count of manslaughter, no issue of provocation arose directly. However, his Honour noted that the shooting of the bystanders occurred as an accompaniment of the shooting of Mr Ravnjak and the circumstances of provocation. Further, the principle of totality was required to be considered.
His Honour added:
“… members of the community are entitled to go about their everyday affairs without concern that someone may shoot them, albeit as part of an intent to kill or inflict harm on some other person brought about in circumstances of provocation by such other person. The members of the community are entitled to be free from having their physical health and well-being interfered with in the course of the resolution of personal and private problems between two particular people.
…
… the place and time of the commission of those offences in the present case mark them as objectively serious.
Thus, when determining the sentences for the nine charges on which the prisoner was convicted by the jury it would not, in my opinion, be appropriate to make the sentences on the nine counts of malicious wounding wholly concurrent with the sentence to be imposed in respect of the conviction of manslaughter. The sentences in respect of those offences should reflect their seriousness and the disapprobation of the Courts for crimes of such a nature.”
His Honour noted the various factors that were to be considered in the exercise of the sentencing discretion. He referred to the need to take into account the plea of guilty.
I have outlined, in my consideration of the background facts, a number of his Honour’s findings of fact. Of particular significance was his Honour’s findings about the circumstances giving rise to provocation.
It was submitted his Honour should have found the degree of provocation to be significant or even great. I am not sure of the terms in which the submission was made to his Honour, but his Honour treated it as a submission that the degree of provocation should be found to be “quite great”.
His Honour set out the facts found by him, including that there were thirty to fifty threatening phone calls over a comparatively short time. These phone calls, together with the confrontations and events preceding the shooting, had a cumulative effect on the Applicant and were responsible for him losing his self-control.
His Honour concluded that the threats were seen by the Applicant as real and that the fact that they involved threats to his family was of particular significance to him. Nevertheless, his Honour said that: “the description ‘great’ goes beyond the description I would apply.”
His Honour indicated that he took into account the plea of guilty, although he did not quantify the degree to which he took it into account.
It had also been submitted that the plea indicated the Applicant’s contrition. His Honour referred to the media interview, to which I have already referred, in which the Applicant expressed his regret for injuring the bystanders, but no such regret with respect to killing Mr Ravnjak. His Honour noted that this stance was maintained at the first trial. It was not until the sentencing hearing, and here in this Court, that any element of contrition was expressed by him, in terms.
His Honour accepted that there was genuine contrition, albeit belated.
His Honour rejected a submission that the killing lacked premeditation. His Honour found that the shotgun was not obtained for self-protection. Rather, his Honour found:
“It was retrieved by the prisoner well before the killing and carried by him, mainly in a loaded condition, so that he could use it on Mr Ravnjak when he found him … By his own admission the prisoner’s intent was to kill Mr Ravnjak. The plea of guilty on the basis of provocation involves an acceptance of the fact that there was either an intent to kill or inflict grievous bodily harm at the time of the shooting, albeit as a result of the provocation.”
His Honour concluded that the Applicant intended, on the day of the killing, to discharge the shotgun at the deceased and had been so intending prior to that day.
His Honour noted the firearms offence on the part of the Applicant. His Honour also set out a number of subjective considerations directed to the prospects for rehabilitation.
A submission was made to O’Keefe J that the sentences for the malicious wounding should be wholly concurrent with the sentence for manslaughter. His Honour rejected that submission and added to his earlier observations quoted above:
“I have already expressed the view that the combination of nine malicious woundings together with the manslaughter, even given that they are closely related in time and in origin, should nonetheless bear a greater blameworthiness than a conviction for the manslaughter alone. It would be inappropriate in accordance with community standards to ignore the nine malicious woundings, even taking into account the circumstances of the present case.
Even given the application of the principle of totality I am of opinion that regard should be had to the fact that nine people were injured as a consequence of the actions of the prisoner. However, recognition of the fact that those offences were closely related to and intertwined with the manslaughter is also appropriate.”
His Honour proceeded to impose a sentence for each of the malicious woundings and to make the manslaughter sentence partially concurrent with the sentences for the malicious woundings. His Honour fixed a term of three years for each of the offences of malicious wounding and determined those sentences would be concurrent with each other.
His Honour then imposed a sentence of ten years imprisonment for the manslaughter, which was to commence at the expiration of two years of the three-year sentences for the malicious wounding charges.
His Honour fixed the non-parole period so that it expired on 25 February 2007. His Honour said that it was appropriate to vary the statutory ratio between the head sentence and the non-parole period and said that he found special circumstances on two grounds, rehabilitation prospects of the Applicant and the accumulation of sentences.
His Honour varied the ratio for a non-parole period of seven and a half years down to six years by reason of these factors.
Grounds of Appeal
The Applicant relies on the following grounds of appeal:
1.            The total sentence imposed was unduly harsh and severe.
2.The sentencing judge erred in imposing fixed sentences for the malicious wounding counts.
3.            The sentencing judge erred:
(a)          in accumulating the sentences;
(b)in failing to give an appropriate reduction in sentence for the plea;
(c)in failing to appreciate the level and extent of the provocation endured by the Applicant;
(d)in determining that provocation was not relevant on the malicious wounding offences;
(e)in finding that the number of persons wounded was a relevant aggravating matter;
(f)in failing to take into account that the Applicant had unsuccessfully sought assistance against the deceased from the police;
(g)          in failing to give full benefit to the contrition shown;
(h)in making adverse findings of fact against the Applicant which were largely irrelevant to the proceedings and not open to him to make at the requisite standard, which included:
(i)that the deceased did not possess a knife during the fight on 18 January 1999;
(ii)that the Applicant was an associate of the criminal element;
(iii)that the Applicant did not believe that the deceased may have had a knife on him at the time of the shooting;
(iv)that the Applicant was not in any actual fear for his own life or bodily well being at the time of the shooting;
(v)that at an earlier incident where the Applicant said he fired a pistol, that the Applicant thought the deceased had a gun.
The Appeal

The jurisdiction which this Court exercises is that found in s6(3) of the Criminal Appeal Act 1912. It turns on the formation of an opinion on the part of this Court that:
“Some other sentence, whether more or less severe is warranted in law and should have been passed”.
If the Court forms such an opinion, it is empowered to quash the sentence and pass such other sentence in substitution for it. I am not of the opinion that another sentence less severe than that imposed by O’Keefe J is warranted. This is a test which must be applied to each of the offences.
The three year sentence imposed with respect to each of the malicious wounding counts was fully justified. These were innocent bystanders who were injured by the Applicant who pursued his victim in a public place. The offence was constituted by the inflicting of wounds and does not turn on any intention to wound. It has a maximum penalty of imprisonment for seven years.
The sentencing judge’s imposition of a sentence of three years is well within the scope of his discretion. It would not be regarded as high, even though the offender had lost control of his actions for reasons unconnected with the victims of these offences.
I reach a similar conclusion with respect to the imposition of a ten year sentence, with a six year non-parole period in the case of the conviction for manslaughter. What was involved was, in substance, a public execution, which was reduced from murder to manslaughter, by the acceptance on the part of the Crown that the degree of provocation was such as to involve a relevant loss of self-control on the part of the Applicant.
Nevertheless, the loss of human life involved requires condign punishment. His Honour’s sentence was well within the scope of the reasonable exercise of his discretion in all the circumstances of the case.
The Applicant relied on the Judicial Commission’s sentencing statistics with respect to each of the two kinds of offences here in question. I do not find the statistics helpful on this occasion.
In the case of manslaughter, it is well known the circumstances of the offence differ so widely that virtually nothing can be obtained from statistics that is of assistance in a particular case.
With respect to the statistics relating to malicious wounding, they indicate that only thirty two percent of offenders received more than three years as a head sentence and that sixty percent received non-parole periods or minimum terms of eighteen months or less.
These do not suggest to me that there is anything particularly severe about the sentences imposed in this case. These statistics alone do not suggest that his Honour’s sentences are outside the permissible range.
His Honour was, in my opinion, entitled to impose fixed term sentences rather than, as suggested by the Applicant in ground 2, that he should have imposed a term with a non-parole period.
A fixed term is a sentencing option that is reasonably open. In any event, I would not form the opinion, for which s6(3) of the Criminal Appeal Act 1912 calls, in circumstances where as a matter of substance, the effect of his Honour’s sentencing structure was equivalent to his imposing a head sentence of three years, with a non-parole period of two years for consecutive sentences, i.e. consecutive between the wounding and the manslaughter offences.
I have noted that a number of the grounds of appeal overlap. This is because of the way his Honour accumulated the sentences. This was part of the basis for ground 1 and is also expressly raised in ground 3(a).
The Applicant’s submission that there was no “extra criminality involved” in the malicious wounding offences, apparently based on the fact that they came from one act. That submission should be rejected. At the very least it ignores the fact that there were two shots. It was the first shot that injured the bystanders and the second that killed the deceased. His Honour gave clear and cogent reasons for indicating that the additional criminality involved in the malicious wounding charges needed to be separately recognised in the sentences he imposed. His Honour was correct for the reasons he gave.
A submission was made that the effect of the accumulation was such as to deprive the Applicant of the finding of special circumstances, but the finding of special circumstances was partly based on the accumulation of sentences. In any event, the substance of the sentence structure is, as I have indicated, a three year head sentence for malicious wounding, with a two year non-parole period. This was a recognition of special circumstances to some degree.
By ground of appeal 3(b), the Applicant asserts that the sentence was so high that it manifested the probability that an appropriate reduction in sentence for the guilty plea had not been given. His Honour stated that he took the plea into account. He was not obliged to quantify the effect of the allowance for the plea.
There is no basis for any inference that his Honour failed to give the plea proper weight. The inference is not available from the sentence itself. This ground of appeal is no more than a possible explanation of why, if it were otherwise the case, his Honour imposed a sentence which was beyond the range of permissible discretion. As I have indicated above, in my opinion, his Honour did not do so.
As to ground of appeal 3(c), the Applicant submitted that his Honour minimised the degree of provocation. His Honour did make a finding that, in all the circumstances, he would not describe the degree of provocation as “great”. This was a matter which was at the heart of Mr Ramage’s submissions.
It was open to his Honour to evaluate the extent, gravity and effect of the provocation for purposes of the plea. The degree of provocation is a relevant consideration on sentence (see R v Alexander (1995) 78 A Crim R 141 at 144).
His Honour accepted that the provocation had led to a loss of self-control on the part of the Applicant. Nevertheless, the acts constituting the provocation were threats, albeit made on numerous occasions and directed not only at the Applicant, but also at his mother and son.
Nevertheless, it was open to his Honour to come to the view, bearing in mind the range of kinds of provocation with which the Court is familiar over many years of dealing with issues of this character, that the particular acts in this case were not at the highest end of the scale.
The Applicant submitted his Honour erred in saying that provocation was not relevant to the malicious wounding offences. This is ground of appeal 3(d). It was, however, accepted, that although it was not a legal defence to the charges, it nevertheless was a matter to be taken into account in determining the appropriate sentence for the malicious wounding charges.
I do not believe his Honour ignored the fact the Applicant had lost control of his actions at the time he fired the first shot which caused injury to the bystanders. He did say that “no issue of provocation arose” with respect to the malicious wounding charges. This was, in my view, a reference to the uncontested proposition that provocation was not a defence, or even a partial defence to those charges. In the passage in which that statement appears, his Honour immediately went on to say that “the fact that the shooting of the nine people in question took place immediately before and as an accompaniment to the ultimate shooting of Mr Ravnjak” and, as his Honour put it, “consideration needs to be given to those circumstances”. His Honour’s reference to ‘consideration needing to be given to the circumstances’ indicates that his Honour did take into account, on the malicious wounding charges, the facts and matters constituting provocation for the killing of the deceased, although he did not take into account provocation as such.
Ground of appeal 3(e) states that his Honour erred by holding the number of persons wounded was a relevant aggravating factor. The Applicant submitted that “there was only one reckless criminal act”. Accordingly, the number of persons was not an aggravating factor.
In my opinion, his Honour was entitled to take into account on sentence for each of the malicious wounding charges, the fact that each charge occurred in such circumstances that the Applicant discharged a shotgun in a crowded shopping street. Notwithstanding the situation that he had lost control, the number of persons injured on the same occasion was not an irrelevant consideration on sentence for each. However, I do not believe it is a proper reading of his Honour’s judgment that he took the matter into account in this way. His Honour referred to the number of persons injured as bystanders in the context of determining that the sentence for manslaughter should not be wholly concurrent with all of the sentences for malicious wounding. In fact, he did make all of the sentences for malicious wounding concurrent with each other.
Ground of appeal 3(f) is to the effect his Honour failed to take into account that the Applicant had unsuccessfully sought assistance against the deceased from the police. It was submitted that this not only supported the existence of threats, which his Honour in any event accepted in full, but also was a manifestation of “the Applicant’s desire to stay within the law”.
I accept that attempts to avoid violence are a relevant consideration. His Honour did not expressly refer to this matter in his reasons for sentence. His Honour did, however, refer to the attempt to obtain the intervention of the deceased’s father. This was a matter which his Honour took into account and was, in all of the circumstances of the deceased’s irrational behaviour, a more likely source of redress.
Although his Honour does not mention the approach to the police, I doubt his Honour failed to take it into account. Nevertheless, on any view, it was not a matter which would materially affect the ultimate result.
Ground of appeal 3(g) asserts his Honour failed to give full benefit for the contrition shown. His Honour accepted that there was genuine but belated contrition. The Applicant’s submission was based on his Honour’s finding that “no contrition was expressed by the prisoner” until after the second trial. There was evidence that the Applicant had expressed contrition at least to his lawyers prior to the second trial. There was also other evidence, to which Mr Ramage referred, suggesting expressions of contrition to other people, which expressions could have extended to the deceased, and not simply to the bystanders.
His Honour’s observations in his remarks on sentence were directed to the failure to “express” contrition to the court. This is made plain from the immediately preceding sentences quoted above, where his Honour noted that the second trial was aborted before the Applicant had an opportunity to give evidence.
In my opinion, his Honour did not minimise the Applicant’s contrition. He accepted it as genuine, though belated, and took it into account in his sentence.
Ground of appeal 3(h) refers to a number of findings of fact. I have referred to the remarks on sentence in which his Honour makes the various references to which objection is taken. Each of the findings was open to his Honour and I do not find any of them to be irrelevant to the decision-making process of his Honour. Nor, in my opinion, were any of the challenged findings of central significance to the sentencing process.
Whether or not a knife was in the possession of Mr Ravnjak during the fight on 18 January, was of some relevance to the level of provocation relied upon by the Applicant. However, the finding by his Honour that he rejected the evidence of the Applicant that the deceased had a knife was not of great significance as his Honour found that the Applicant did eventually develop a fear for his life and that he did eventually develop a loss of control as a result of the provocation.
The reference to the Applicant being an associate of criminal elements was in the context of whether or not his prior record was such as to justify any degree of leniency. This statement played a limited role in that judgment, which was based on the prior conviction of the firearms offences and the Applicant’s possession of two firearms, one a shotgun, which he had acquired some months before for unspecified future use and, therefore, had nothing to do with any provocation by the deceased.
Nor can any complaint be made about his Honour’s finding that the Applicant did not believe that the deceased had a knife on the day. His Honour simply rejected the Applicant’s assertion. His Honour’s reasoning was based on the objective circumstances of the event and the absence of any such assertion on prior occasions, although his Honour appears to have erred in one inconsequential respect in this regard.
The Applicant had armed himself with a shotgun for the express purpose of killing the deceased. The circumstances of provocation leading to the killing were not determined by the asserted belief that the deceased had a knife on the day. In any event, in my opinion, it was open to his Honour to reject the evidence.
Similarly, it was open for his Honour to conclude that the Applicant had no actual fear for his life “on this particular occasion”. His Honour otherwise accepted the evidence that the Applicant did have fear for his life and for the safety of his mother and son. By his reference to “on this particular occasion”, his Honour was referring to the absence of any specific threat to which the shooting was an immediate impulsive reaction. His Honour was entitled to make such a finding. His Honour accepted that the killing was provoked by a fear on the part of the Applicant for his life.
I come to the same conclusion with respect to the assertion that there was error in his Honour’s rejection of the Applicant’s assertion that, on a prior occasion, he thought that the object, which he believed the deceased had in his hand, was a pistol. It was open to his Honour to reject that evidence.
In oral submissions the Applicant identified an additional factual error to those set out in the grounds of appeal. That factual finding was the finding to the effect that the short verbal exchange on the day of the killing was initiated by the Applicant. However, the most that was said at this time, by either the deceased or Applicant, was the calling out of the other’s name. If there is any error on the part of the sentencing judge, I consider it was immaterial.
Leave to appeal should be granted, but the appeal dismissed.
HULME J: I agree with the orders proposed by the Chief Justice, subject to one matter, with his Honour’s reasons.
The point of difference lies in the description of the degree of provocation. I would, myself, have characterised it as “great” but that fact would not cause me to think that his Honour’s sentence was otherwise than appropriate.
That conclusion follows largely because of the response of the Applicant to the provocation in the period leading up to the fatal day, and, indeed, on that day.
The Applicant’s failure to do a lot more by way of dealing with the provocative conduct in a more civilised manner, in going more than once to the police if he could not achieve the satisfaction he wanted from them, in arming himself, not with only one but with two weapons, in carrying those one or other of the weapons with him, often in a loaded state, on the day in question, on not departing when he saw the deceased in the street, and then in taking the weapon from the car with him at a time when he wished to accost the deceased, are all matters of conduct to be weighed in the balance against the extent of provocation.
His offence was gross, and the penalty, in my view, appropriate.
BUDDIN J: I agree with the Chief Justice.
SPIGELMAN CJ: The order is leave to appeal is granted, appeal dismissed.

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LAST UPDATED: 22/04/2003