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Skocic v R

Skocic v R

Case [2014] NSWCCA 225 23 October 2014

Appeal

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Skocic v R [2014] NSWCCA 225
Hearing dates: 15 October 2014
Decision date: 23 October 2014
Before: Macfarlan JA at [1]
Fullerton J at [2]
Bellew J at [3]
Decision:
Leave to appeal is refused

Catchwords:
APPEAL - sentence - applicant convicted of break and enter in company and recklessly damage property - application for leave to appeal - assertion of manifest excess based solely upon sentencing statistics - application for leave refused
APPEAL - sentence - use of sentencing statistics - where primary submission of manifest excess relied solely upon sentencing statistics - necessity to determine sentence according to principle and not numerical equivalence
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Barbaro v R; Zirilli v R [2014] HCA 2; (2014) 305 ALR 323
Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
Jolly v R [2013] NSWCCA 76; (2013) 229 A Crim R 198
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
MLP v R [2014] NSWCCA 183
R v Nikolovska [2010] NSWCCA 153
RLS v R [2012] NSWCCA 236
Texts Cited: Nil
Category: Principal judgment
Parties: Dennis Skocic - Applicant
Crown - Respondent
Representation: Counsel:
B Glennon - Applicant
J Pickering SC - Respondent
Solicitors:
David H Cohen and Co - Applicant
J Pheils, Solicitor for Public Prosecutions - Respondent

File Number(s): 2012/105691008
Publication restriction: Nil
Decision under appeal

Date of Decision:

2013-10-11 00:00:00

Before:

Frearson SC DCJ

Judgment

MACFARLAN JA: I agree with Bellew J.

FULLERTON J: I agree with Bellew J.

BELLEW J: Following a joint trial with a co-accused, Dennis Skocic ("the applicant") was found guilty by a jury of the following offences:

(i) that he did, on 3 April 2012, at Narrabeen in the State of NSW, break and enter the dwelling house at 1/151 Ocean Street, and commit a serious indictable offence therein, namely steal a white cabinet the property of William John Boyce, in circumstances of aggravation, namely, whilst in company (count 1);

(ii) that he did, on 3 April 2012, at Narrabeen in the State of NSW, whilst in company, recklessly damage property, namely various walls, various furniture fixtures, and two doors at 1/151 Ocean Street, the property of William John Boyce (count 2).

The offending in count 1 was contrary to s. 112(2) of the Crimes Act 1900 and carried a maximum penalty of 20 years imprisonment. A standard non-parole period of 5 years was prescribed. The offending in count 2 was contrary to s. 195(1A)(a) of the Crimes Act 1900 and carried a maximum penalty of 6 years imprisonment.

On 11 October 2013, his Honour Judge Frearson SC imposed the following sentences:

(i) in respect of count 1, a non-parole period of 2 years and 3 months imprisonment commencing on 13 July 2013 and expiring on…

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 Skocic v R

Details

AGLC: Skocic v R [2014] NSWCCA 225
Case: [2014] NSWCCA 225
Decision Date: 23 October 2014

CaseChat Overview and Summary

Skocic v R involved an appeal by the applicant against his conviction for breaking and entering a property in company and recklessly damaging property. The case was heard in the High Court of Australia. The applicant sought leave to appeal on the basis of manifest excess of sentence, arguing that the sentencing statistics suggested his sentence was excessive.

The legal issues before the court included whether the applicant's reliance on sentencing statistics alone was sufficient to establish manifest excess and whether the court should determine the sentence according to principles rather than numerical equivalence. The court considered the principles of sentencing and the appropriate factors to be considered in determining whether a sentence was manifestly excessive.

The court found that the applicant's primary submission of manifest excess was based solely on the use of sentencing statistics, which was not sufficient to establish manifest excess. The court emphasised the importance of determining sentence according to principle and not numerical equivalence. The court held that the sentencing statistics alone were not sufficient to establish manifest excess and that the sentence was not manifestly excessive. The application for leave to appeal was therefore refused.

The court did not make any orders as the application for leave to appeal was refused. The applicant's conviction and sentence therefore stood.

Orders