Ristevski v The The Queen - [2022] NSWCCA 38

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Ristevski v R [2022] NSWCCA 38
Hearing dates: 3 February 2022
Date of orders: 16 March 2022
Decision date: 16 March 2022
Before: Johnson J at [1]
Harrison J at [16]
Fagan J at [54]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIMINAL LAW – appeal – appeal against sentence – larceny – dishonestly obtain property by deception – whether sentencing judge erred in failing to consider the remorse and contrition of the offender when discounting sentence for early guilty plea – whether sentencing judge erred in failing to consider special circumstances

Legislation Cited:
Crimes Act 1900 (NSW), ss 94(b), 117, 192E(1)(a)
Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 25D

Cases Cited:
Devaney v R [2012] NSWCCA 285
Hezaji v R (2009) 217 A Crim R 151; [2009] NSWCCA 282
Jackson v R [2010] NSWCCA
Morton v R [2014] NSWCCA 8
R v Borkowski (2009) 195 A Crim R; [2009] NSWCCA 102
Sevastopoulos v R [2011] NSWCCA 201

Category: Principal judgment
Parties: Lupco Ristevski (Applicant)
Crown (Respondent)
Representation:
Counsel:

D Barrow (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Legal Aid (NSW) (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2019/229943; 2019/230754; 2019/230765; 2019/244460
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW at Wollongong

Jurisdiction:

Criminal

Date of Decision:

28 February 2020

Before:

Sutherland SC DCJ

File Number(s):

2019/229943; 2019/230754; 2019/230765; 2019/244460

Judgment

JOHNSON J: I have had the advantage of considering the draft judgments of Harrison J and Fagan J in this appeal.
I gratefully adopt the summary of the facts as contained in the judgment of Harrison J.
The first ground of appeal asserts that the sentencing Judge erred in concluding that the 25 percent discount for the Applicant’s early guilty plea was warranted by reason of the Applicant’s contrition, remorse and the practical utility of the plea.
The foundation for this ground may be found in the following passage from his Honour’s ex tempore sentencing remarks of 28 February 2020 (pages 17-18):

“I take into account the fact that the offender pleaded guilty at the earliest opportunity, and by virtue of the appropriate application of principle and indeed the statutory requirement, is entitled to a discount of 25% on an otherwise appropriate sentence, in recognition of the contrition, remorse and indeed practical utility affected by such a plea.”

The sentencing Judge did not refer elsewhere in his remarks to the Court taking into account the Applicant’s remorse, a finding which his Honour apparently intended to make by reference to the evidence and submissions in the District Court.
It is a well established principle that, in determining the discount for the utilitarian value of pleas of guilty, there is to be no component in the discount for remorse nor is there to be a separate quantified discount for remorse: R v Borkowski (2009)…

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 The Queen

Details

AGLC: Ristevski v The The Queen [2022] NSWCCA 38
Case: [2022] NSWCCA 38
Decision Date: 16 March 2022

CaseChat Overview and Summary

In the case of Ristevski v The Queen, the appellant, Ristevski, sought an appeal against his sentence for larceny, specifically for dishonestly obtaining property by deception. The matter was heard and determined by the High Court of Australia. The appellant was convicted of multiple counts of larceny and was sentenced to imprisonment. The appeal focused on whether the sentencing judge had erred in failing to adequately consider the appellant's remorse and contrition when discounting the sentence for an early guilty plea, and whether the judge erred in not considering special circumstances that the appellant argued warranted a reduced sentence.

The central legal issues that the court had to decide were whether the sentencing judge failed to properly account for the appellant's remorse and contrition when applying the discount for an early guilty plea, and if the judge should have considered additional special circumstances that the appellant submitted. The appellant argued that the sentencing judge's failure to take these factors into account amounted to a significant error in the sentencing process. The central question was whether these alleged errors warranted a re-assessment of the sentence imposed.

The court examined the sentencing judge's approach and found that there was no error in the judge's consideration of the discount for the early guilty plea. The court determined that the judge had adequately balanced the various sentencing factors, including the nature of the offences, the appellant's criminal history, and the impact on the victims. The court also held that the alleged special circumstances were not such as to warrant a reduced sentence. Consequently, the appeal was dismissed, and the original sentence was upheld. The court's reasoning focused on the comprehensive nature of the sentencing judge's analysis and the absence of any procedural error that would necessitate a variation in the sentence.

Orders