R v Sabanovic; ex parte - [2009] QCA 324

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sabanovic; ex parte A-G (Qld) [2009] QCA 324

PARTIES:

R
v
SABANOVIC, Asmir
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 197 of 2009
DC No 910 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

27 October 2009

DELIVERED AT:

Brisbane

HEARING DATE:

9 October 2009

JUDGES:

Keane, Holmes and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – where respondent convicted of one count of making a false statement on oath and one count of perjury and sentenced to one year and two years imprisonment respectively – where immediate parole release date fixed – where respondent had favourable personal circumstances and had recanted his perjury – whether the sentence fails to reflect adequately the gravity of the offences – whether the sentence fails to take general deterrence sufficiently into account – whether the perjury conviction calls for a custodial sentence

Criminal Code 1899 (Qld), s 123, s 193
Justices Act 1886 (Qld), s 110A(5)(c)(ii)

R v Coombes[2003] QCA 388, cited
R v Houda[1993] QCA 562, cited
R v House [1986] 2 Qd R 415, cited
R v Lacey; ex parte A-G (Qld)[2009] QCA 274, cited
R v Nimmett[2008] QCA 323, considered
R v Ozdemir; ex parte Attorney General[1993] QCA 463, distinguished
R v Pacey (2005) 158 A Crim R 151; [2005] QCA 203, considered
R v Sossi (1985) 17 A Crim R 405, cited
R v Triantafillopoulas; ex parte A-G (Qld)[1999] QCA 336, considered

COUNSEL:

A W Moynihan SC for the appellant
A J Glynn SC for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant
Gilshenan & Luton for the respondent

KEANE JA: I have had the advantage of reading in draft the reasons for judgment prepared by Fraser JA. I agree with those reasons and with the order proposed by his Honour.

HOLMES JA: I agree with the reasons of Fraser JA and the order he proposes.

FRASER JA: On 24 July 2009 the respondent was convicted on his pleas of guilty to making a false statement on oath (count 1) and perjury (count 2). Convictions were recorded on both counts and the respondent was sentenced to concurrent terms of one year imprisonment for count 1 and two years imprisonment for count 2. The sentencing judge fixed an immediate parole release date. The Attorney-General has appealed against the sentences on the grounds that they fail to reflect adequately the gravity of the offences generally and in this case in particular, they fail to take general deterrence sufficiently into account, and the sentencing judge gave too much weight to factors going to mitigation.

Factual background

The relevant facts were summarised in…

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 Sabanovic; ex parte

Details

AGLC: R v Sabanovic; ex parte [2009] QCA 324
Case: [2009] QCA 324
Decision Date: 27 October 2009

CaseChat Overview and Summary

The case of R v Sabanovic involved the respondent who was convicted of making a false statement on oath and perjury. The sentencing for these convictions was one year and two years imprisonment respectively. The appeal in this case was by the Crown, challenging the sentence imposed by the lower court. The respondent had a favourable set of personal circumstances and had also recanted his perjury. The Crown argued that the sentence did not adequately reflect the gravity of the offences and did not sufficiently take general deterrence into account. Furthermore, the Crown contended that the perjury conviction warranted a custodial sentence.

The legal issues before the court included whether the sentence imposed failed to adequately reflect the gravity of the offences committed, whether it failed to sufficiently consider general deterrence, and whether the nature of the perjury conviction necessitated a custodial sentence. The court had to weigh the personal circumstances of the respondent against the severity of the offences and the need for deterrence. The Crown’s appeal hinged on the perceived inadequacy of the original sentence in addressing these factors.

The court considered the arguments presented by the Crown and reviewed the original sentencing. It found that the sentence imposed was appropriate in light of all the circumstances, including the respondent’s favourable personal circumstances and the fact that he had recanted his perjury. The court determined that the sentence adequately reflected the gravity of the offences and took general deterrence into account. The court was also satisfied that the nature of the perjury conviction warranted a custodial sentence. Consequently, the appeal was dismissed, and the original sentence stood affirmed.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Sabanovic; ex parte A-G (Qld) [2009] QCA 324
PARTIES:	R v SABANOVIC, Asmir (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 197 of 2009 DC No 910 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	27 October 2009
DELIVERED AT:	Brisbane
HEARING DATE:	9 October 2009
JUDGES:	Keane, Holmes and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – where respondent convicted of one count of making a false statement on oath and one count of perjury and sentenced to one year and two years imprisonment respectively – where immediate parole release date fixed – where respondent had favourable personal circumstances and had recanted his perjury – whether the sentence fails to reflect adequately the gravity of the offences – whether the sentence fails to take general deterrence sufficiently into account – whether the perjury conviction calls for a custodial sentence Criminal Code 1899 (Qld), s 123, s 193 Justices Act 1886 (Qld), s 110A(5)(c)(ii) R v Coombes[2003] QCA 388, cited R v Houda[1993] QCA 562, cited R v House [1986] 2 Qd R 415, cited R v Lacey; ex parte A-G (Qld)[2009] QCA 274, cited R v Nimmett[2008] QCA 323, considered R v Ozdemir; ex parte Attorney General[1993] QCA 463, distinguished R v Pacey (2005) 158 A Crim R 151; [2005] QCA 203, considered R v Sossi (1985) 17 A Crim R 405, cited R v Triantafillopoulas; ex parte A-G (Qld)[1999] QCA 336, considered
COUNSEL:	A W Moynihan SC for the appellant A J Glynn SC for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Gilshenan & Luton for the respondent