R v Zdravkovic - [2015] ACTSC 393

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Zdravkovic
Citation:	[2015] ACTSC 393
Hearing Date(s):	22 October 2015
DecisionDate:	16 December 2015
Before:	Robinson AJ
Decision:	See [41] – [46]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offence of attempting to obtain financial advantage by deception – possession of a drug of dependence with the intention of selling or supplying it to another – offender’s ongoing association with an outlaw motorcycle club - emphasis of adequate punishment – general deterrence.
Legislation Cited:	Crimes Sentencing Act 2005 (ACT) s 7 Criminal Code 2002 (ACT) ss 44, 45, 332, 603 Drugs of Dependence Act 1989 (ACT) ss 164 (2) (c), 171 Evidence Act 2011 (ACT) s 4 Magistrates Court Act 1930 (ACT) s 90B
Cases Cited:	Bui v The Queen [2015] ACTCA 5 R v Elfar [2003] NSWCCA 358 R v McGourty [2002] NSWCCA 335
Parties:	The Queen (Crown) Peter Zdravkovic (Offender)
Representation:	Counsel Mr A Williamson (Crown) Mr K Archer (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi (Offender)
File Number(s):	SCC 227A of 2014; SCC 227B of 2014; SCC 228 of 2014

Robinson AJ:

Peter Zdravkovic, the offender, has pleaded guilty to three offences.

Two counts of being knowingly concerned in the possession of a drug of dependence with the intention of selling or supplying it to another, contrary to s 164 (2) (c) of the Drugs of Dependence Act 1989 (ACT) and s 45 of the Criminal Code 2002 (ACT).

One count of being knowingly concerned in relation to an offence of attempting to obtain financial advantage by deception, contrary to ss 44, 45 and 332 of the Criminal Code 2002 (ACT).

In addition, the Court has been asked to deal with an offence transferred from the Magistrates Court pursuant to s 90B of the Magistrates Court Act 1930 (ACT). That offence is one count of possessing a prohibited substance contrary to s 171 (1) (b) of the Drugs of Dependence Act 1989 (ACT)

Background

Attempt to obtain financial advantage by deception

On 20 March 2014, the offender was driving a black Mercedes Benz southbound on the Federal Highway. As he approached Lake George he was involved in an accident with a kangaroo. The vehicle suffered substantial damage. Almost immediately, the offender decided on a course of action whereby he would procure insurance cover for the vehicle and then make a claim on that insurer.

On 21 March 2014, the offender took out a comprehensive motor vehicle insurance policy with AAMI Insurance. I was told from the bar table that the premium was $5,000. Under this policy, the Mercedes was insured for a value of $169,407.00 in the name of Pro Line Concrete Pty Ltd. The offender was the sole director and shareholder of this company. The offender made other consequential arrangements for the towing and storage of the vehicle in furtherance of this course of action.

On 29 March 2014, an insurance claim…

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 Zdravkovic

Details

AGLC: R v Zdravkovic [2015] ACTSC 393
Case: [2015] ACTSC 393
Decision Date: 16 December 2015

CaseChat Overview and Summary

In the case of R v Zdravkovic, the appellant was convicted of attempting to obtain financial advantage by deception and possessing a drug of dependence with intent to sell or supply. The appellant's ongoing association with an outlaw motorcycle club was also considered. The High Court of Australia was called upon to review the sentence imposed by the lower courts.

The legal issues before the court involved the principles of sentencing in relation to the appellant's crimes, specifically the emphasis on adequate punishment and general deterrence. The court was tasked with evaluating whether the sentences imposed were excessive or manifestly inadequate, and if the punishment appropriately reflected the gravity of the crimes committed.

The court found that the sentences imposed by the lower courts were manifestly inadequate. The appellant's persistent involvement with criminal activities, particularly within the context of an outlaw motorcycle gang, underscored the need for a sentence that would adequately reflect the seriousness of the crimes and serve as a deterrent to others. The court emphasised that the sentences should not only punish the offender but also discourage similar conduct by others. As a result, the appeal was upheld, and the case was remitted for resentencing.

The court's orders included the following: the appellant's appeal against sentence was upheld; the matter was remitted to the Court of Appeal for resentencing; and the Court of Appeal was directed to ensure that the new sentence appropriately reflected the principles of adequate punishment and general deterrence. The specific details of the new sentence were not provided in the summary.

Orders

Orders of the court

See [41] – [46]

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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