Regina v Valkovich - [2000] NSWCCA 506

CITATION: Regina v Valkovich [2000] NSWCCA 506

FILE NUMBER(S): CCA 60154/00

HEARING DATE(S): 01/12/00

JUDGMENT DATE:
1 December 2000

PARTIES :

Regina (Appellant)
Michael Valkovich (Respondent)

JUDGMENT OF: Fitzgerald JA at 1; Whealy J at 13; Howie J at 14

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0490

LOWER COURT JUDICIAL
OFFICER : Rummery DCJ

COUNSEL : L M B Lamprati (Appellant)
J W Fliece (Respondent)

SOLICITORS: S E O'Connor - Crown (Appellant)
Horowitz & Bilinsky (Respondent)

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912

DECISION: Appeal dismissed

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

CCA 60152/00
DC 98/11/0490

FITZGERALD JA
WHEALY J
HOWIE J
FRIDAY 1 DECEMBER 2000

REGINA v VALKOVICH
JUDGMENT

1 FITZGERALD JA: The Director of Public Prosecutions has appealed pursuant to section 5D of the Criminal Appeals Act 1912 against the sentence imposed upon Michael Valkovich (the respondent) by his Honour Judge Rummery QC in the District Court in Sydney on 18 February 2000. 2 The respondent had been found guilty after trial on 1 November 1999 of an offence of receiving $34,400 belonging to two hotels, which I need not more fully describe, knowing the money to have been stolen contrary to section 188 of the Crimes Act 1900. The sentencing judge ordered the respondent to perform 500 hours of community service and imposed a fine of $5,000. Nine months have passed since the respondent was sentenced, and he has completed the entire period of community service and paid his fine by monthly instalments of at least $250, leaving only $1,820 to pay. 3 The respondent was the director of a security company which performed work for the two hotels. On Monday 15 December 1997 an employee of the security company collected two cash bags containing weekend takings from the hotels totaling in excess of $84,000. The employee then drove to the vicinity of the St George Bank at Dee Why to deposit the money. When he parked his vehicle, the employee was held up by knife point by an unknown offender. After tying the employee's hands with plastic cable ties to the steering wheel of his vehicle and removing the cash bags, the offender fled. 4 On Tuesday 23 December 1997 police executed search warrants at the business premises of the security company and later at the respondent's residence. Ten bundles, each containing ten $50 dollar notes, were found in the desk in the respondent's office, and a further $9,010 was found in a filing cabinet. The money was bound in a similar manner to that which had been stolen. Police also located a case of plastic ties which were identical with those used to tie the employee up during the robbery. A further $10,000 was found underneath some towels in a wardrobe in a bedroom of the respondent's home and a further $12,980 was found in a box on top of the wardrobe. The equivalent of $1,030 in Deutschemarks were found underneath a television set…

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 Valkovich

Details

AGLC: Regina v Valkovich [2000] NSWCCA 506
Case: [2000] NSWCCA 506
Decision Date: 1 December 2000

CaseChat Overview and Summary

The Court of Criminal Appeal of New South Wales was called upon to determine the appeal of the Director of Public Prosecutions against the sentence imposed on Michael Valkovich by the District Court. Valkovich had been found guilty of receiving stolen money under section 188 of the Crimes Act 1900 and was sentenced to 500 hours of community service and a fine of $5,000. The prosecution appealed on the grounds that the sentence was too lenient, arguing that a custodial sentence was warranted given the gravity of the offence, Valkovich's breach of trust, and his lack of remorse as evidenced by his not guilty plea.

The court considered the arguments presented by both the prosecution and the defence, examining the mitigating factors such as Valkovich's clean criminal record, his personal characteristics, and the impact of the sentence on his ability to work in the security industry. The court noted that Valkovich had completed his community service and paid the fine, and highlighted that he had no prior convictions and was regarded as an honest and trustworthy individual by those who knew him. The judges also acknowledged the principle that appellate courts should not substitute their own sentencing decisions for those of the trial court unless there has been a manifest error in the sentencing process.

Concluding the appeal, the Court of Criminal Appeal found that while the sentence was indeed lenient, it was not so inappropriate as to warrant appellate intervention. The judges were of the opinion that the sentencing judge had appropriately considered the mitigating factors and the principles of sentencing. Therefore, the appeal was dismissed, and the original sentence was upheld.

Orders