TOMASOVICH -v- STJEPIC & ORS [2005] WASCA 7

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASCA 7
Case No:	SJA:1093/2004	Heard:	20 JANUARY 2005
Coram:	MILLER J	Delivered:	20/01/05
No of pages:	6	Judgment Part:	1 of 1
Result:	Appeal allowed Sentence of 2½ years substituted for sentence of 3½ years
Category:	B
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Parties:	KAMM LUKE LEVI TOMASOVICH DOUGLAS STJEPIC CRAIG KINGSLEY WHITE CRAIG ALEXANDER STEPHEN
Catchwords:	Justices Offences of burglary Startingpoint beyond jurisdictional limit Sentences excessive Turns on own facts
Legislation:	Criminal Code 1913 (WA), s 401 Sentence Administration Act 2003 (WA) Sentencing Legislation Amendment and Repeal Act 2003 (WA)
Case References:	Herbert v The Queen (2003) 27 WAR 330 Chan v The Queen (1989) 38 A Crim R 337 Cheshire v The Queen, unreported; CCA SCt of WA; Library No 7924; 4 September 1989 Veen v The Queen (No 2) (1988) 164 CLR 465 Woods v Cecchele [2004] WASCA 163

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : TOMASOVICH -v- STJEPIC & ORS [2005] WASCA 7 CORAM : MILLER J HEARD : 20 JANUARY 2005 DELIVERED : 20 JANUARY 2005 FILE NO/S : SJA 1093 of 2004 MATTER : Justices Act 1902 (WA) BETWEEN : KAMM LUKE LEVI TOMASOVICH

Appellant

AND

DOUGLAS STJEPIC

CRAIG KINGSLEY WHITE

CRAIG ALEXANDER STEPHEN

Respondents

ON APPEAL FROM:

Jurisdiction : COURT OF PETTY SESSIONS

Coram : MR G CALDER SM

File No : MI 1543 of 2004, MI 1544 of 2004, MI 267 of 2004, MI 5884 of 2004

Catchwords:

Justices - Offences of burglary - Startingpoint beyond jurisdictional limit - Sentences excessive - Turns on own facts

(Page 2)

Legislation:

Criminal Code 1913 (WA), s 401

Sentence Administration Act 2003 (WA)
Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Result:

Appeal allowed

Sentence of 2½ years substituted for sentence of 3½ years

Category: B

Representation:

Counsel:

Appellant : Mr A J Robson

Respondents : Ms S E Wisbey

Solicitors:

Appellant : Legal Aid of Western Australia

Respondents : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Herbert v The Queen (2003) 27 WAR 330

Case(s) also cited:

Chan v The Queen (1989) 38 A Crim R 337
Cheshire v The Queen, unreported; CCA SCt of WA; Library No 7924; 4 September 1989
Veen v The Queen (No 2) (1988) 164 CLR 465
Woods v Cecchele [2004] WASCA 163

(Page 3)

1 MILLER J: This is an appeal from a decision of Mr G Calder SM in the Court of Petty Sessions at Midland on 24 August 2004 when the learned Magistrate sentenced the appellant to an effective term of imprisonment of 3½ years in respect of four complaints, three of which constituted offences of burglary and one the offence of escaping legal custody. No issue was taken with the sentence which was imposed for escaping legal custody.

2 The appellant was charged on complaint 1544/04 that on 11 April 2003 at Ballajura he was, without consent, in the dwelling of Colin Mathie…

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 Tomasovich v Stjepic

Details

AGLC: Tomasovich v Stjepic [2005] WASCA 7
Case: [2005] WASCA 7
Decision Date: 20 JANUARY 2005

CaseChat Overview and Summary

In the matter of Tomasovich v Stjepic, the appeal was heard by the Court of Appeal in South Australia. The appellant, Tomasovich, sought to appeal his conviction and sentence for a burglary offence. Tomasovich was convicted and sentenced to a term of imprisonment of 3½ years. The central issue before the Court of Appeal was whether the sentence imposed by the primary judge was excessive, and whether it should be reduced to a lesser term. The appellant argued that the starting point for the sentence was beyond the jurisdictional limit and, consequently, the overall sentence was excessive.

The Court of Appeal considered the principles of sentencing, particularly the importance of proportionality and the need to avoid excessive sentences. It was noted that the primary judge had indeed erred by using a starting point that was beyond the jurisdictional limit. The court also acknowledged that while the offence was serious, the sentence was excessively harsh when compared to similar cases. The appeal was allowed on the basis that the sentence was not only disproportionate but also turned on its own facts, leading to an unjust outcome.

Given the findings, the Court of Appeal substituted the original sentence of 3½ years with a reduced sentence of 2½ years. This decision ensured that the sentence was proportionate to the offence committed and aligned with the sentencing principles established in similar cases. The appeal was thus successful in mitigating the excessive nature of the original sentence.

Orders

Orders of the court

Appeal allowed

Sentence of 2½ years substituted for sentence of 3½ years

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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