Regina v Milojevic - [2001] NSWCCA 461

CITATION: REGINA v MILOJEVIC [2001] NSWCCA 461

FILE NUMBER(S): CCA 60449/00

HEARING DATE(S): 19 November 2001

JUDGMENT DATE:
19 November 2001

PARTIES :

Regina
v
John Jovan MILOJEVIC

JUDGMENT OF: Barr J at 1; Adams J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/21/1024

LOWER COURT JUDICIAL
OFFICER : Knight DCJ

COUNSEL : Mr P M Winch (Applicant)
Mr L M B Lamprati (Crown)

SOLICITORS: D J Humphries (Applicant)
S E O'Connor (Crown)

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900

CASES CITED:
R v Qutami [2001] NSWCCA 353

DECISION: Application for leave to appeal against sentence is granted but the appeal is dismissed.

IN THE COURT OF

CRIMINAL APPEAL

60449/00

MONDAY 19 NOVEMBER 2001

REGINA v JOHN JOVAN MILOJEVIC

JUDGMENT

1 BARR J: I agree with the orders proposed by Justice Adams. The orders are therefore as his Honour has proposed.

2 ADAMS J: John Jovan Milojevic seeks leave to appeal from a sentence imposed on him in the District Court on 13 June 2000 for the offence of threatening to use an offensive weapon with intention to hinder lawful apprehension.

3 This crime carries a maximum penalty of twelve years' imprisonment. In sentencing the applicant to a term of five years five months and fifteen days imprisonment (commencing 17 December 1999 and expiring on 1 June 2005) the learned sentencing Judge took into account, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999, seven outstanding charges which arose out of the circumstances leading to the offence of which the applicant was convicted.

4 The applicant, who is a heavy drinker, visited a friend of his in the late evening of 3 June 1999, where he became involved in an argument. After refusing to leave the premises he was physically removed after making threats against his friend and his friend's family. As he left the home, he smashed a side mirror on a vehicle parked in the driveway and, after making further threats, eventually left to return home. The breaking of the mirror was the seventh charge taken into account.

5 The applicant returned to his mother's house where, with his de facto, Ms Myer, and his three-year-old daughter Emily, he lived with his mother. Ms Myer was in bed asleep with Emily. The applicant came into the room and demanded money. When Ms Myer told him that she had earlier given him all the money she had, he threatened to start smashing the place apart if she did not give him more. He started screaming and swearing at Ms Myer, spat in her hair and face, then grabbing her hair, started pulling and digging his knuckles into her head. This assault was the first charge taken into account.

6 Not surprisingly, Emily had woken by this time and started to scream. Ms Myer called out to the applicant's mother to ring the police. The applicant let her go, and she walked out of the bedroom…

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 Regina v Milojevic

Details

AGLC: Regina v Milojevic [2001] NSWCCA 461
Case: [2001] NSWCCA 461
Decision Date: 19 November 2001

CaseChat Overview and Summary

The Court of Criminal Appeal heard an application by John Jovan Milojevic for leave to appeal against the sentence imposed by the District Court for the offence of threatening to use an offensive weapon with intent to hinder lawful apprehension. The maximum penalty for this offence is twelve years' imprisonment. The applicant, who was sentenced to five years five months and fifteen days imprisonment, sought to appeal the sentence on the basis that it was manifestly excessive and outside the range of sentences that could be considered appropriate. The appeal was heard by Barr J and Adams J.

The central legal issue in this case was whether the sentence imposed by the District Court was manifestly excessive. The Court considered whether the sentence was outside the range of sentences that could be considered appropriate, and whether the sentencing judge had made any errors in assessing the circumstances of the offence and the offender. The Court also considered the relevance of the applicant's prior criminal history, his remorse and contrition, and the nature of the outstanding charges taken into account by the sentencing judge.

The Court found that the sentence imposed by the District Court was not manifestly excessive. The Court noted that the applicant had a history of violence, particularly towards police, and that the offence in question was committed while the applicant was on bail and a recognisance for another offence. The Court also found that the sentencing judge had appropriately taken into account the applicant's remorse and contrition, as well as the seriousness of the outstanding charges. The Court held that the sentence was within the range of sentences that could be considered appropriate, and that there was no manifest error in the sentencing judge's assessment of the circumstances of the offence and the offender.

The Court granted the application for leave to appeal against sentence, but dismissed the appeal. The Court found that, while the sentence may have been at the higher end of the range of sentences that could be considered appropriate, it was not so excessive as to mark error in the sentencing judge. The Court emphasised that it was not appropriate to allow an appeal on the basis that the Court might not have imposed the same sentence as that which was imposed below.

The Court did not make any orders in relation to the appeal.

Orders