Veljanoski v The Queen - [2021] NSWCCA 255

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Veljanoski v R [2021] NSWCCA 255
Hearing dates: 25 October 2021
Date of orders: 8 November 2021
Decision date: 08 November 2021
Before: Harrison J at [1]
Davies J at [2]
Dhanji J at [76]
Decision:
(1) Grant leave to appeal.
(2) Allow the appeal.
(3) Quash the sentence imposed by Judge Woods QC in the District Court on 4 August 2020.
(4) In lieu, sentence the appellant to an aggregate sentence of two years and eight months imprisonment commencing 23 March 2020 and expiring 22 November 2022 with a non-parole period of one year and eight months expiring 22 November 2021. The earliest date on which the appellant will become entitled to release on parole is 22 November 2021.

Catchwords:
CRIME – appeals – appeal against sentence – applicant pleaded guilty to five offences – offences of
carrying out a sexual act without consent and intimidation intending fear of harm – offending involved applicant approaching victims in his car and masturbating himself – where applicant had alcohol and substance use issues, intellectual disability, and anxiety and depressive disorders – aggregate sentence imposed - whether sentencing judge erred in specifying indicative sentence which was the maximum penalty for offence in Count 5 – where objective seriousness of offence found to be in midrange - where although sentencing judge accorded 25% discount for early plea he did not reduce indicative sentence by that discount – whether offence under s 66DD(a) of the Crimes Act was aggravated by victim’s vulnerability from her age – where age was an element of the offence - where errors conceded by Crown – applicant resentenced
CRIME – appeals – appeals against sentence – whether applicant could rely on further report of psychologist for resentence purposes - report based on assessment made after applicant was sentenced – report not prepared to show applicant’s progress following sentence - no exceptional circumstances – no miscarriage of justice demonstrated if report rejected

Legislation Cited:
Crimes Act 1900 (NSW) ss 61KE, 66DD
Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13
Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A

Cases Cited:
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
Khoury v R [2011] NSWCCA 118
Lawless v The Queen (1979) 142 CLR 659

Texts Cited:
Nil

Category: Principal judgment
Parties: Aleksandar Veljanoski (Applicant)
Crown (Respondent)
Representation:
Counsel:
K Stares (Applicant)
C McGorey (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2019/310515
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

4 August 2020

Before:

Woods QC ADCJ

File Number(s):

2019/310515

Judgment

HARRISON J: I agree with Davies J.
DAVIES J: The applicant pleaded guilty in the Local Court to the following offences:

Sequence 1: Intentionally carry out a sexual act towards KR…

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 Veljanoski v The Queen

Details

AGLC: Veljanoski v The Queen [2021] NSWCCA 255
Case: [2021] NSWCCA 255
Decision Date: 08 November 2021

CaseChat Overview and Summary

In Veljanoski v The Queen, the applicant appealed against his sentence, having pleaded guilty to five offences of carrying out a sexual act without consent and intimidation intending fear of harm. The case was heard in the High Court of Australia. The offences involved the applicant approaching victims in his car and engaging in masturbation in their presence. The applicant had alcohol and substance use issues, an intellectual disability, and anxiety and depressive disorders.

The legal issues before the court were whether the sentencing judge erred in specifying the indicative sentence for the offence in Count 5 as the maximum penalty and whether the offence under s 66DD(a) of the Crimes Act was aggravated by the victim's vulnerability from her age. The court found that the sentencing judge did not accord the 25% discount for an early plea to the indicative sentence, despite finding the objective seriousness of the offence to be in the midrange. The court also considered whether the applicant could rely on a further report of a psychologist for resentence purposes, prepared after the applicant was sentenced. The court held that the report was not prepared to show the applicant's progress following sentence, and there were no exceptional circumstances or demonstrated miscarriage of justice that would warrant the report's acceptance.

The High Court concluded that the sentencing judge had erred in not reducing the indicative sentence by the discount for an early plea. The court also found that the offence under s 66DD(a) of the Crimes Act was not aggravated by the victim's vulnerability from her age, as age was an element of the offence. The Crown conceded the errors, and the applicant was resentenced. The court rejected the reliance on the further report of the psychologist for resentence purposes, as it was not prepared to show the applicant's progress following sentence, and there were no exceptional circumstances or demonstrated miscarriage of justice warranting its acceptance.

Orders