R v Strezovski - [2007] VSCA 260

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 117 of 2007

THE QUEEN
	v
TONI STREZOVSKI

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JUDGES:	VINCENT, REDLICH, KELLAM JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 November 2007
DATE OF JUDGMENT:	21 November 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 260

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Criminal law – Sentencing – False imprisonment – Attempted thefts – Thefts – Parity – Whether Tsiaras principles applied – Whether ill health taken into account sufficiently – Whether insufficient allowance for Renzella pre-sentence detention – Application to rely upon fresh evidence refused – Manifest excess – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M Gamble SC	Ms A Hogan, Solicitor for Public Prosecutions
For the Appellant	Mr J P Dickinson	Slades and Parsons

VINCENT JA:

I agree, for the reasons advanced by Kellam JA, that the appeal against sentence should be dismissed.

REDLICH JA:

For the reasons of Kellam JA which I have read in draft, I also would dismiss the appeal against sentence.

KELLAM JA:

On 13 March 2007, in the County Court at Melbourne, the appellant pleaded guilty to one count of false imprisonment (count 1), one count of attempted theft (count 2), and one count of theft (count 3).

The appellant was 33 years of age at the time of sentencing. He admitted to six prior convictions. In April 2002 he had been convicted of offences of burglary and theft and of particular relevance was the fact that on 18 September 2002 at the County Court at Melbourne he had been convicted of robbery, causing injury intentionally and theft of a motor car and sentenced to a term of imprisonment of 18 months with nine months of such sentence being partially suspended for a period of two years.

After hearing a plea in mitigation on 20 April 2007, the sentencing judge imposed the following terms of imprisonment on 4 May 2007:
On count 1 – 15 months’ imprisonment.
On count 2 – 6 months’ imprisonment.
On count 3 – 3 months’ imprisonment.
His Honour directed that four months of the sentence imposed on count 2 and two months of the sentence imposed on count 3 be served cumulatively upon the sentence imposed upon count 1 and upon each other. This created a total effective sentence of 21 months. His Honour ordered that nine months of the term of imprisonment be partially suspended for a period of two years, leaving a period of 12 months’ imprisonment to be served immediately. A period of 14 days was calculated as pre-sentence detention.
Having been granted leave to appeal his sentence on 3 August 2007, the appellant now seeks to overturn the sentence imposed upon him and relies upon 11 separate grounds, a number of which are, in effect, no more than particulars of ground 1. That ground contends that the individual sentences imposed are manifestly excessive, as is the term of imprisonment ordered to be served before the balance of the sentence is to be suspended. I shall return to the detail…

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 Strezovski

Details

AGLC: R v Strezovski [2007] VSCA 260
Case: [2007] VSCA 260
Decision Date: 21 November 2007

CaseChat Overview and Summary

The appeal in Strezovski involved the appellant who was sentenced to 24 months imprisonment for false imprisonment and attempted theft. The case was heard in the Court of Appeal of the Supreme Court of South Australia. The appellant challenged his sentence on several grounds, including whether the trial judge applied the principles set out in Tsiaras and whether sufficient consideration was given to his ill health and pre-sentence detention.

The central legal issues were whether the trial judge correctly applied the principles for sentencing set out in Tsiaras, whether the appellant's ill health and pre-sentence detention were adequately considered, and whether the sentence imposed was manifestly excessive. The appellant argued that the trial judge did not sufficiently account for his ill health and the time already spent in custody before his sentence began, and that the sentence was therefore manifestly excessive.

The court found that the trial judge did apply the principles of parity and proportionality in arriving at the sentence. The trial judge had taken into account the appellant's ill health and the time spent in pre-sentence detention. The court held that the sentence was not manifestly excessive. The court also found that the application to rely on fresh evidence was properly refused, as it did not meet the requirements for such an application.

In conclusion, the appeal was dismissed. The court confirmed the sentence of 24 months imprisonment, with a non-parole period of 18 months, imposed by the trial judge.

Orders