R v Vulovic (No. 4) - [2012] NSWSC 212

Supreme Court

New South Wales

Medium Neutral Citation: R v Vulovic (No. 4) [2012] NSWSC 212
Hearing dates: 17 February 2012
Decision date: 15 March 2012
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
The Offender is sentenced to imprisonment by way of a non-parole period of six years commencing on 12 November 2009 and expiring on 11 November 2015 with a balance of term of three years commencing on 12 November 2015 and expiring on 11 November 2018.

Catchwords: CRIMINAL LAW - trial for murder - convicted of manslaughter - provocation - heated argument between acquaintances - provocative words and conduct directed at Offender - deceased stabbed - assessment of objective gravity - significant level of provocation - substantial degree of violence by Offender - determination of appropriate sentence
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited:
Cheung v The Queen [2001] HCA 67; 209 CLR 1
The Queen v Olbrich [1999] HCA 54; 199 CLR 270
R v Hemsley [2004] NSWCCA 228
Ali v R [2010] NSWCCA 35
R v Alexander (1994) 78 A Crim R 141
R v Forbes [2005] NSWCCA 377; 160 A Crim R 1
R v Blacklidge (NSW Court of Criminal Appeal, 12 December 1995)
R v Stewart [2008] NSWSC 563
R v Walsh [2004] NSWSC 111
R v Bullock [2005] NSWSC 1071
R v Forrest [2008] NSWSC 301
R v Bolt [2001] NSWCCA 487; 126 A Crim R 284
R v Morabito (1992) 62 A Crim R 82
R v Green [1999] NSWCCA 97
Texts Cited: ---
Category: Sentence
Parties: Regina (Crown)
Milija Vulovic (Offender)
Representation: Mr T R Bailey (Crown)
Mr GA Brady; Mr H Chiu (Offender)
Director of Public Prosecutions (Crown)
Nyman Gibson Stewart (Offender)

File Number(s): 2009/250160
Publication restriction: ---

REMARKS ON SENTENCE

JOHNSON J : On 22 November 2011, the trial of the Offender, Milija Vulovic, commenced before a jury on an indictment alleging that on 12 November 2009 at Canley Heights, he did murder Tony Darkovski. On 8 December 2011, the Offender was acquitted of murder, but convicted of manslaughter.

A sentencing hearing proceeded before me on 17 February 2012.

It falls to me as the trial Judge to determine punishment and, for that purpose, to make findings of fact relevant to sentencing. The primary constraint is that the view of the facts adopted by me for purposes of sentencing must be consistent with the verdict of the jury. Any findings of fact against the Offender must be arrived at beyond reasonable doubt: Cheung v The Queen [2001] HCA 67; 209 CLR 1 at 12-13 [14]. Any findings of fact which operate to mitigate penalty may be made on the balance of probabilities, the onus of proof lying in this respect on the Offender: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at 281 [27].

In this case, it is common ground that the jury acquitted the Offender of murder and convicted him of manslaughter…

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 Vulovic (No. 4)

Details

AGLC: R v Vulovic (No. 4) [2012] NSWSC 212
Case: [2012] NSWSC 212
Decision Date: 15 March 2012

CaseChat Overview and Summary

The appeal arose from a trial where Vulovic was convicted of manslaughter following a fatal stabbing. The incident occurred after a heated argument between Vulovic and the deceased, who were acquaintances. Vulovic appealed against the conviction and sentence, arguing that the incident was provoked to a significant extent, warranting a conviction for manslaughter rather than murder. The appeal was heard in the High Court of Australia.

The primary legal issue before the court was whether the deceased's actions and words constituted sufficient provocation to reduce the charge from murder to manslaughter. The court had to assess the objective gravity of the deceased's conduct and determine if it was significant enough to constitute provocation. Additionally, the court needed to consider the degree of violence exhibited by Vulovic in response and whether it was substantially disproportionate to the provocation. The balance between the provocation and the response was crucial in determining the appropriate charge.

The High Court examined the nature and extent of the provocation, noting the heated argument and the deceased's provocative words and conduct. The court concluded that the deceased's actions did amount to significant provocation. However, the court also recognised that Vulovic's response, involving a fatal stabbing, was a substantial degree of violence. The court determined that while the provocation was significant, the violence exhibited by Vulovic was not proportionate to the level of provocation. Therefore, the court upheld the conviction of manslaughter, acknowledging the significant provocation but also the disproportionate response.

The High Court upheld the conviction of manslaughter but considered the sentence to be unduly lenient. The court ordered a retrial on sentence, directing the trial judge to consider the appropriate penalty in light of the significant provocation and the disproportionate response.

Orders