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R v Radic

R v Radic

Case [2001] NSWCCA 174 29 May 2001

Sentencing

Criminal Law

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Reported Decision:
122 A Crim R 70

New South Wales

Court of Criminal Appeal

CITATION: R v Radic [2001] NSWCCA 174 revised - 1/06/2001

FILE NUMBER(S): CCA 60547/00

HEARING DATE(S): 7/5/01
18/05/2001

JUDGMENT DATE:
29 May 2001

PARTIES :

Regina
Dragan Radic

JUDGMENT OF: Hidden J at 1; Carruthers AJ at 2; Badgery-Parker AJ at 59

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/41/0135

LOWER COURT JUDICIAL
OFFICER : Goldring DCJ

COUNSEL : W. Robinson QC (Crown)
S. Odgers SC (Applicant) and R.J. Button (Applicant)

SOLICITORS: S E O'Connor (Crown)
D J Humphreys (Applicant)

CATCHWORDS: Sentencing - Appellant committed for sentence to the District Court pursuant to s 51A of the Justices Act 1902 - One count of break, enter and steal specified jewellery to the value of $38,000 - Appellant adheres to plea of guilty in District Court and admits stealing electric drill (not particularised) but denies stealing the particularized jewellery - Consideration of appropriate procedure to be followed by the sentencing judge in such circumstances - necessity to comply carefully and precisely with terms of s 51A.

LEGISLATION CITED: Crimes Act 1900
Criminal Procedure Act 1986
Justices Act 1902

CASES CITED:
Lacis v Cashmarts [1969] 2 QB 400
Pilgram v Rice-Smith (1977) 65 Cr App R 142
R v Bamford (1972) 2 NSWLR 261
R v Burns (1920) 20 SR 351
R v Crombie [1999] NSWCCA 297
R v Gibson (Unreported, NSWCCA 19 March 1987)
R v Paauwe [1970] 3 NSWLR 125
R v Ponfield (1999) 48 NSWLR 327
R v Saxon (Unreported, NSWCCA, 21 April 1998)
R v Thomson & Houlton (1999-2000) 49 NSWLR 383
R v Tideswell [1905] 2 KB 273
R v VHP (Unreported, NSWCCA 7 July 1997)

DECISION: Leave to appeal granted. Appeal upheld. Sentence by Goldring DCJ set aside. New sentence: imprisonment for 3 years, commencing 27 April 2000 and expiring 26 April 2003. Non-parole period of 1 year and 9 months, commencing 27 April 2000 and expiring 26 January 2002, on which date the applicant is to be released to parole.

1 HIDDEN J: I agree with Carruthers AJ

2 CARRUTHERS AJ: Dragan Radic seeks leave to appeal against a sentence imposed upon him by Judge Goldring at the Wollongong District Court on 4 August 2000. This application has raised important questions relating to committals for sentence by a Local Court pursuant to s 51A of the Justices Act 1902.

3 The background to the matter is important. On 27 April 2000 the applicant was arrested by Wollongong Police and charged with an offence under s 112(1) of the Crimes Act 1900, as amended. Relevantly s 112(1) provides that: -

“Whosoever breaks and enters any dwelling-house…and commits any serious indictable offence therein… shall be liable to imprisonment for fourteen years.”

Criminal Procedure Act

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 Radic

Details

AGLC: R v Radic [2001] NSWCCA 174
Case: [2001] NSWCCA 174
Decision Date: 29 May 2001

CaseChat Overview and Summary

The appellant, Mr. Radic, was before the court following a guilty plea in the District Court to charges of breaking and entering and stealing, as well as an additional charge of stealing an electric drill. The District Court was required to determine the appropriate sentence for Mr. Radic, considering his plea and the nature of the crimes committed. The case turned on the interpretation and application of section 51A of the Justices Act 1902, which governs the procedure for sentencing in cases transferred from the Magistrates' Court. The court was tasked with determining how to proceed when a defendant pleads guilty to some charges but denies others that were specified in the transfer.

The legal issue at the heart of this case was the correct procedural approach for the sentencing judge to take when faced with a situation where the defendant has entered a guilty plea to some charges but denies others that were specified in the transfer to the District Court. The court needed to clarify the obligations of the sentencing judge under section 51A of the Justices Act 1902, and whether the judge was required to conduct a trial on the denied charges or proceed with sentencing based on the guilty plea and the evidence already presented. This involved a careful analysis of the statutory language and the intent behind the legislation.

In delivering the judgment, the court emphasised the importance of strictly adhering to the terms of section 51A. It was held that when a defendant pleads guilty to charges transferred under the section, the sentencing judge must consider the full scope of the evidence presented at the Magistrates' Court hearing, including the denied charges, in determining the appropriate sentence. The court stressed that the statutory framework was designed to ensure a consistent and fair approach to sentencing in such cases, and that any deviation from the prescribed procedure could potentially undermine the integrity of the judicial process. The court concluded that the sentencing judge must carefully consider all the evidence, including the denied charges, to ensure a just and appropriate sentence is imposed.

The court ordered that the case be remitted to the District Court for the sentencing judge to reconsider the sentence in light of the court's findings. The District Court was directed to ensure that it complied precisely with the requirements of section 51A, taking into account all the evidence presented, including the denied charges, in determining the appropriate sentence for Mr. Radic.

Orders