SB v Nikola Jetovic

[2013] ACTCA 7

SB v NIKOLA JETOVIC
[2013] ACTCA 7 (12 February 2013)

APPEAL AND NEW TRIAL – Appeal from resentencing by single judge of ACT Supreme Court – No new evidence – Appellant expecting child – Not a matter which requires this court to change the otherwise appropriate outcome – Whether sufficient weight given to appellant’s subjective circumstances – Sufficient weight given – Whether sufficient consideration of periodic detention – Sufficient consideration given – Appeal dismissed

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 21 – 2012
No. SCA 60 of 2011

Judges:         Burns, Dowsett JJ and Nield AJ
Court of Appeal of the Australian Capital Territory
Date:            12 February 2013

IN THE SUPREME COURT OF THE       )          No. ACTCA 21 – 2012
  )          No. SCA 60 of 2011
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:SB

Appellant

AND:NIKOLA JETOVIC

Respondent

ORDER

Judges:  Burns, Dowsett JJ and Nield AJ
Date:  12 February 2013
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal is dismissed.

1. The sentences imposed by Penfold J are confirmed.  Those sentences will commence on 11 November 2012 and expire on 10 May 2013. 

IN THE SUPREME COURT OF THE       )          No. ACTCA 21 – 2012
  )          No. SCA 60 of 2011
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:SB

Appellant

AND:NIKOLA JETOVIC

Respondent

Judges:  Burns, Dowsett JJ and Nield AJ
Date:  12 February 2013
Place:  Canberra

REASONS FOR JUDGMENT

BURNS J:

1. On 16 May 2012, Penfold J heard an appeal by the current appellant from sentences that were imposed in the ACT Magistrates Court with respect to offences of theft and assault that occurred on 18 October 2009, one offence of theft that occurred on 18 January 2010, one offence of failing to appear on 20 September 2010, one offence of theft on 6 October 2010 and one offence of failing to appear in November 2010.

2. Her Honour upheld the appeal with respect to the sentences imposed by the Magistrate and resentenced the appellant.  Originally, the aggregate sentence imposed in the Magistrates Court was one of 12 months’ imprisonment with seven months non-parole.  The sentence imposed by Penfold J in resentencing the appellant was one of 6 months’ imprisonment. 

3. The appellant now appeals from the sentences imposed by her Honour in the resentencing process.  In the course of his submissions to the Court this morning Mr Doig, who appears on behalf of the appellant, has indicated that whilst there is no fresh evidence there is some information that he is able to put before the Court and that is that the appellant is expecting another child which is due in mid-April this year.

4. No submissions have been put to us by Mr Doig as to how we should deal with that.  It does not appear to me to be a matter which requires this court to change what would otherwise have been the appropriate outcome of the appeal based upon the material that was before her Honour.

5. Whilst there were a number of grounds of appeal set out in the notice of appeal, Mr Doig has indicated that essentially he accepts that all of the sentences individually imposed by her Honour were not manifestly excessive, and he also accepts that the aggregate sentence imposed by her Honour was not manifestly excessive.

6. In effect, he submits that the error to be found in the sentencing process conducted by her Honour was that her Honour did not give sufficient weight to the subjective features of the appellant and particularly what he refers to as the “more rosy picture” painted in the Pre-Sentence Report that was then before her Honour dealing with the question of the appellant’s relationship with her child and also with Care and Protection Services in her dealings with that organisation concerning her child. 

7. In my opinion, not only does that submission not fall within any of the grounds of appeal set out in the notice of appeal, there is simply no merit to it.  It is quite clear from reading her Honour’s sentencing remarks that she was fully aware of the contents of the Pre-Sentence Report and the inter-relationship between the appellant and the Services dealing with her relationship to her child.

8. Mr Doig has submitted that her Honour gave insufficient consideration to the question of whether the sentences imposed should be served by way of periodic detention.  Again, there is no merit in this submission.  It is quite clear that her Honour turned her mind to the question whether the sentences she imposed should be served either individually or in the aggregate by way of periodic detention.  Her Honour determined that it was not appropriate for the sentences to be served by way of periodic detention, and her Honour gave reasons.  In my opinion, the reasons given by her Honour, with respect, were entirely appropriate. 

9. The appeal will be dismissed. 

10. The sentences imposed by Penfold J will be confirmed.  Those sentences will commence on 11 November 2012 and expire on 10 May 2013. 

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

Associate:

Date:       19 February 2013

IN THE SUPREME COURT OF THE       )          No. ACTCA 21 – 2012
  )          No. SCA 60 of 2011
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:SB

Appellant

AND:NIKOLA JETOVIC

Respondent

Judges:  Burns, Dowsett JJ and Nield AJ
Date:  12 February 2013
Place:  Canberra

REASONS FOR JUDGMENT

DOWSETT J: 

1. I agree with his Honour Justice Burns.

I certify that the preceding paragraph numbered [11] is a true copy of the Reasons for Judgment herein of his Honour, Justice Dowsett.

Associate:

Date:     19 February 2013

IN THE SUPREME COURT OF THE       )          No. ACTCA 21 – 2012
  )          No. SCA 60 of 2011
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:SB

Appellant

AND:NIKOLA JETOVIC

Respondent

Judges:  Burns, Dowsett JJ and Nield AJ
Date:  12 February 2013
Place:  Canberra

REASONS FOR JUDGMENT

NIELD AJ: 

1. I also agree with his Honour Justice Burns.

I certify that the preceding paragraph numbered [12] is a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.

Associate:

Date:     19 February 2013

Counsel for the Appellant:  Mr A Doig
Solicitor for the Appellant:  John O’Keefe
Counsel for the Respondents:  Mr S Drumgold
Solicitor for the Respondents:  Office of ACT Director of Public Prosecutions
Date of hearing:  12 February 2013
Date of judgment:  12 February 2013