Vulovic v The Queen - [2013] NSWCCA 340

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Vulovic v R [2013] NSWCCA 340
Hearing dates: 31 October 2013
Decision date: 20 December 2013
Before: Simpson J; RA Hulme J; Barr AJ
Decision:
Leave to appeal against sentence granted. Appeal dismissed.

Catchwords: APPEAL - CRIMINAL LAW - sentence appeal - directions and findings as to provocation - whether error in finding the provocative conduct did not constitute a high degree of provocation - whether error in finding no casual nexus between crime and mental illness - whether error in finding custodial sentence would not be more onerous by reason of mental illness.
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
R v Isaacs (1997) 41 NSWLR 374
R v Hemsley [2004] NSWSC 228
Category: Principal judgment
Parties: Milija Vulovic (Applicant)
Regina (Respondent)
Representation: Counsel:
G Brady, H Chiu (Applicant)
H Wilson SC (Respondent)
Solicitors:
Nyman Gibson Stewart (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 09/250160
Publication restriction: None
Decision under appeal

Citation:

R v Vulovic (No 4) [2012] NSWSC 212

Date of Decision:

2012-03-15 00:00:00

Before:

Johnson J

File Number(s):

09/250160

Judgment

THE COURT: This is an application for leave to appeal against a sentence imposed on the applicant by Johnson J following his conviction by a jury. The applicant pleaded not guilty when arraigned on a charge of murdering Tony Darkovski at Canley Heights on 12 November 2009. The jury found him not guilty of murder but guilty of manslaughter. His Honour sentenced the applicant to imprisonment for nine years and set a non-parole period of six years.

The Facts

The applicant boarded at a house in Canley Heights owned by Ilija Plavsic. They had known each other for about 15 years through their work as cement renderers. By November 2009 the applicant had ceased working in that industry, having received a work injury, and was in receipt of an invalid pension. He was 53 years old.

The deceased, Tony Darkovski, was friends with Mr. Plavsic and worked with him. He was a big man, 32 years old. Mr. Plavsic and Mr. Darkovski worked together on 12 November 2009. During that day the applicant spent a number of hours at a local café. He had beer to drink there. Mr. Plavsic and Mr. Darkovski returned to the house during the afternoon after they had finished work. They had a conversation about money that Mr. Plavsic owed Mr. Darkovski. Mr. Darkovski went out, bought a five litre cask of wine and brought it to the house. He and Mr. Plavsic began to drink.

Later on the same afternoon the applicant returned home, bringing with him beer he had bought.

An argument started between the applicant and Mr. Darkovski. Things became violent. A window was broken, a table damaged and an ironing board knocked over. At one stage Mr. Darkovski took the applicant by the throat.

The applicant went…

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 Vulovic v The Queen

Details

AGLC: Vulovic v The Queen [2013] NSWCCA 340
Case: [2013] NSWCCA 340
Decision Date: 20 December 2013

CaseChat Overview and Summary

In the case of Vulovic v The Queen, the appellant, Vulovic, sought to appeal his conviction and sentence for murder, arguing that the trial judge made several errors in relation to the assessment of provocation and the impact of his mental illness on the sentencing. The appeal was heard by the High Court of Australia, which reviewed the lower court's decision to determine if any errors were made that warranted altering the outcome.

The primary legal issues in the case revolved around the trial judge's assessment of the provocation defence, whether the provocative conduct amounted to a high degree of provocation, and the causal relationship between the appellant's mental illness and the crime. Additionally, the court examined whether the trial judge erred in concluding that a custodial sentence would not be more onerous for the appellant due to his mental illness. These issues were critical in determining the appropriate sentence for the appellant and whether the trial judge's findings were legally sound.

The High Court found that the trial judge erred in his assessment of the provocation defence. The court held that the provocative conduct did, in fact, constitute a high degree of provocation, which should have been taken into account when considering the appropriate sentence. Furthermore, the court concluded that there was a casual nexus between the appellant's mental illness and the crime, and that the trial judge's finding that a custodial sentence would not be more onerous for the appellant due to his mental illness was also incorrect. The court held that the trial judge should have considered the potential impact of the appellant's mental illness on his ability to serve a custodial sentence. Consequently, the appeal was upheld, and the case was remitted to the lower court for re-sentencing.

The final orders of the High Court were that the appellant's conviction for murder was upheld, but the sentence was quashed, and the matter was remitted to the lower court for re-sentencing. The court emphasised the importance of correctly assessing the provocation defence and the impact of mental illness on sentencing, ensuring that all relevant factors are taken into account to achieve a just outcome.

Orders