Ristevski v The Queen - [2011] VSCA 53

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2009 0677

IVO RISTEVSKI First Applicant

v

THE QUEEN

Respondent

S APCR 2009 0659

ROBERT MUSSO Second Applicant

v

THE QUEEN Respondent

S APCR 2009 0660

KHALIL BOU’ELIAS Third Applicant

v

THE QUEEN Respondent
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JUDGES:

MAXWELL P, BUCHANAN and BONGIORNO JJA

WHERE HELD:

MELBOURNE

DATE OF HEARING:

20 January 2011

DATE OF JUDGMENT:

20 January 2011

MEDIUM NEUTRAL CITATION:

[2011] VSCA 53

JUDGMENT APPEALED FROM:

R v Bou’Elias, Musso and Ristevski (Unreported, County Court of Victoria, Judge Patrick, 5 June 2009)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary, armed robbery, intentionally cause injury, attempted aggravated burglary and negligently cause serious injury – Judge departed from agreed facts – Aggravating feature found though disavowed by Crown – Unfairness to accused – Incorrect maximum penalty applied – Crown concessions – Appeal allowed – Appellants resentenced.
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APPEARANCES: Counsel Solicitors

For the Applicant Ristevski Mr S A Shirrefs SC Haines and Polites

For the Applicant Musso Mr O P Holdenson QC Valos Black & Associates

For the Applicant Bou’Elias Mr T Kassimatis Theo Magazis & Assocs

For the Respondent Mr B L Sonnet Mr C Hyland, Solicitor for Public Prosecutions
MAXWELL P:
1 These three applications for leave to appeal against sentence have been heard together. The offences to which the applicants pleaded guilty, and the sentences respectively imposed on them, are set out in Schedule A to these reasons. This tabulation was helpfully prepared by the Crown.

2 The offences occurred in two separate incidents. One incident involved all three applicants (‘first incident’). The circumstances of that offending were described by the sentencing judge in the paragraphs of her Honour’s reasons set out in Schedule B.

3 The other incident involved the first applicant and another unknown offender (‘second incident’). The circumstances of that offending were described by the sentencing judge in the paragraphs of her Honour’s reasons set out in Schedule C.

4 The Crown has conceded sentencing error in relation to each applicant, but the concessions relate only to the sentencing for the first incident, that involving the three applicants. The concessions are properly made, in my view. It follows that each appeal will be allowed and each of the appellants resentenced as set out in the table marked Schedule D below.

Departure from agreed facts

5 The incident involving all three applicants had two separate victims, Morgan and Shabo. It appears to me that the conceded errors both relate to the offences concerning the second victim, Shabo. After the armed robbery of the first victim, Morgan, he contacted the second victim, Shabo. Morgan claimed that he did this after being threatened with a gun.

6 The first conceded error is that the judge, in her reasons, concluded that there had in fact been a gun used to threaten Mr Morgan and that this was an aggravating feature of the offending. Her Honour said:

The Crown did not proceed with any charges relating to the use of…

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 Ristevski v The Queen

Details

AGLC: Ristevski v The Queen [2011] VSCA 53
Case: [2011] VSCA 53
Decision Date: 20 January 2011

CaseChat Overview and Summary

The appeal before the court involves the appellants, Ristevski and another, against the decision of the trial judge to impose a sentence on them following their convictions for multiple serious offences. The appellants were found guilty of aggravated burglary, armed robbery, intentionally causing injury, attempted aggravated burglary, and negligently causing serious injury. The appeal challenges the sentence imposed on the basis of several errors made by the trial judge. The central legal issues before the court were whether the trial judge correctly applied the agreed facts, appropriately considered the aggravating factors, and accurately applied the maximum penalties for the offences. The court found that the trial judge had erred by departing from the agreed facts and by finding an aggravating feature that was not accepted by the Crown. Additionally, the court determined that the trial judge had incorrectly applied the maximum penalties for the offences, which led to an unfair outcome for the appellants.

The court meticulously reviewed the trial judge’s application of the facts and legal principles. It noted that the trial judge had incorrectly included an aggravating factor that the Crown had disavowed, which impacted the severity of the sentence. Furthermore, the court identified that the trial judge had applied an incorrect maximum penalty for one of the offences, which was a material error. These errors were deemed significant enough to warrant a departure from the original sentence. The court also considered the concessions made by the Crown during the appeal, which further influenced the decision to allow the appeal and order a resentencing. The court emphasised the importance of correctly applying the facts and legal principles to ensure a fair outcome for the accused.

As a result of these errors, the court allowed the appeal and ordered that the appellants be resentenced. The court directed that the resentencing take into account the correct facts and legal principles, ensuring that the sentence imposed was fair and just. The court’s decision underscores the importance of meticulous fact-finding and accurate application of the law in criminal sentencing. The final orders of the court reflect a commitment to rectifying the errors made in the original sentencing process and ensuring that the appellants receive a sentence that is commensurate with the correct application of the law.

Orders