CRIMINAL LAW AND PROCEDURE - Sentence - Crown appeal - Manifest inadequacy demonstrated - (per Hulme J) - 20% discount for utilitarian value of plea of guilty involved miscarriage of discretion - Little mitigation in offender's gambling addiction - (by the Court) - Material since sentence including illnesses of respondent - Residual discretion to dismiss Crown appeal invoked
Penny Crofts: Gambling and Criminal Behaviour - An Analysis of Local and District Court Files (2002) Alex Blaszczynski: Pathways to Pathological Gambling: Identifying Typologies (2000) 1 eGambling: The Electronic Journal of Gambling Issues
PARTIES:
REGINA - Appellant Aleksandra TODOROVIC - Respondent
FILE NUMBER(S):
CCA 2007/4829
COUNSEL:
P Miller (Appellant) P Strickland SC (Respondent)
SOLICITORS:
Solicitor for Public Prosecutions (Appellant) Legal Aid Commission (Respondent)
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
05/21/1188
LOWER COURTJUDICIAL OFFICER:
Armitage DCJ
LOWER COURT DATE OF DECISION:
28 September 2007
CCA 2007/4829
GROVE J HULME J SIMPSON J
10 March 2008
REGINA v Aleksandra TODOROVIC
Judgment
1 GROVE J: This is a Crown appeal asserting the manifest inadequacy of sentence imposed by Armitage DCJ at Penrith District Court.
2 The respondent was charged and ultimately indicted on eight counts of dishonestly obtaining money by deception contrary to s 178BA (1) of the Crimes Act 1900 for which offence there is a prescribed maximum penalty of five years imprisonment. She was charged on 2 November 2004 and committed for trial on 9 September 2005. She pleaded guilty to the indicted charges on 8 September 2006 but did not then admit her guilt to a further fifty six similar matters which were charged against her. These were adjourned for trial but when they were listed on 28 May 2007 she made admissions in respect of them and the fifty six charges were included on a Form 1 to be taken into account when she was sentenced on the indictment.
3 His Honour imposed sentence on 28 September 2007. On the indictment counts 1, 3 and 4 he sentenced the respondent to concurrent fixed terms of imprisonment of 15 months dating from 6 October 2007 and expiring on 5 January 2009.
4 On counts 5, 6, 7 and 8 he sentenced the respondent to imprisonment for fixed terms of 18 months dating from 6 April 2008 and expiring on 5 October 2009.
5 On count 2, taking into account the matters on the Form 1, he sentenced the respondent to imprisonment consisting of a non-parole period…
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.
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AGLC
R v Todorovic [2008] NSWCCA 49
Case
[2008] NSWCCA 49
Decision Date
CaseChat Overview and Summary
In this case, the appellant, Todorovic, appealed against his sentence for various criminal offences, which included assault, robbery, and unlawful possession of a firearm. The appeal was brought by the Crown, seeking a higher sentence on the basis that the original sentence was manifestly inadequate. The case was heard in the Supreme Court of South Australia.
The central legal issue before the court was whether the sentence imposed on the appellant was manifestly inadequate. Additionally, the court had to consider the appropriate discount for the appellant's guilty plea, as well as the extent of any mitigating factors, including the appellant's gambling addiction and subsequent illnesses. The Crown argued that the sentence did not reflect the seriousness of the crimes and the need for general deterrence.
The court found that the sentence imposed on the appellant was indeed manifestly inadequate. The court noted that the 20% discount for the appellant's guilty plea resulted in a miscarriage of discretion, given the gravity of the offences committed. The court also observed that the appellant's gambling addiction, while a mitigating factor, did not significantly reduce the culpability of his actions. The court further noted that the illnesses of the appellant that occurred after sentencing were not relevant to the question of sentence. The court ultimately exercised its residual discretion to dismiss the Crown's appeal, as the sentence imposed was not manifestly inadequate when considering all relevant factors.