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 1999Cases Cited: Cheung v The Queen [2001] HCA 67; 209 CLR 1
R v Forbes [2005] NSWCCA 377; 160 A Crim R 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 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 97Texts 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…
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- AGLC
- R v Vulovic (No. 4) [2012] NSWSC 212
- Case
- [2012] NSWSC 212
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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
Established by: JOHNSON J
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