R v Rajkovic

[2006] VSCA 209

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 25 of 2006

THE QUEEN

v.

NICOLA RAJKOVIC

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JUDGES:	VINCENT and NETTLE, JJ.A. and KING, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 October 2006
DATE OF JUDGMENT:	4 October 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 209

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Criminal law – Sentence – Commercial cultivation of a narcotic plant – Theft – Crown concession that sentencing judge fell into error – Appeal allowed – Appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C., D.P.P. with Mrs C.M. Quin	Ms A. Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr M.C. O'Connell	Robert Stary & Associates

VINCENT, J.A.:

1. I will invite King, A.J.A. to deliver the first judgment.

KING, A.J.A.:

1. The appellant, Nicola Rajkovic, by leave granted 2 June 2006, appealed against a sentence of two years and three months' imprisonment with a minimum term of 15 months imposed by the learned sentencing judge.  There were five grounds of appeal.

1. The Director of Public Prosecutions, Mr Coghlan, one of Her Majesty's Counsel, with Mrs Quin appeared on behalf of the respondent and conceded in opening the appeal that they would not argue that his Honour had not fallen into error on two of the five grounds set out in the appeal, being grounds 2 and 4.  Mr Coghlan conceded that the errors were such that the appellant should be re-sentenced by this Court.

1. He further conceded that, in view of the factors available to the appellant by way of mitigation, it would not be inappropriate for this Court to re-impose the head sentence imposed by his Honour and wholly suspend the balance of the remaining sentence.  Counsel for the appellant supported such a course being adopted.

1. In my opinion the appeal should be allowed and in lieu of the sentence passed I would sentence the appellant to a term of imprisonment of two years for count 1 (the offence of commercial cultivation of cannabis) and six months' imprisonment for count 2 (the offence of theft of a quantity of electricity).  I would direct that three months of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1.  I would further direct that the sentence should be wholly suspended for a period of 18 months after the appellant has served 322 days in custody, including today.  I would declare that the appellant has served 322 days of pre-sentence detention and would direct that such be noted in the records of the Court.

VINCENT, J.A.: 

1. I agree.

NETTLE, J.A.:

1. I also agree.

VINCENT, J.A.: 

1. The order of the Court is that the appeal is allowed. 

The sentences imposed in the court below are set aside.  The sentences of two years' imprisonment imposed on count 1 and six months' imprisonment on count 2 are re-imposed, as is the order for cumulation of three months of the sentence imposed on count 2. 

This creates a total effective sentence of two years and three months, the service of the whole of which, save for the period of 322 days, is suspended for an operative period of 18 months from today.

It is declared that the period of 322 days' detention already undergone be reckoned as having been served under the sentence hereby imposed.  It is further directed that this declaration and its details be entered in the records of the Court.

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