AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 11 December 2000

R v SINANOVIC

[2000] NSWCCA 394

Fraud & dishonestyTheft & property

Citation: R v Sinanovic [2000] NSWCCA 394
Court: NSW Court of Criminal Appeal
Date: 11 December 2000
Judge(s): Wood CJ at CL, Hulme J, Greg James J

Background

The appellant, a self-represented accused, was convicted in the District Court in November 1997 on six counts of receiving and disposing of stolen Westpac Bank travellers cheques. The charges related to conduct between 1991 and 1993, with the face value of cheques involved across the counts totalling approximately $840,000. A seventh count (stealing) was directed not guilty at the close of the Crown case.

The appellant was sentenced to concurrent terms of imprisonment, each comprising a minimum term of two years commencing 16 May 2001 and an additional term of twelve months. These sentences were structured to run cumulatively upon earlier sentences imposed in separate proceedings. The appellant appeared in person before the Court of Criminal Appeal, with his wife permitted to make submissions on his behalf.

This was the fourth of five appeals the appellant had brought against District Court convictions. He raised fourteen formal grounds of appeal against conviction and six further grounds filed separately, encompassing complaints about lack of legal representation, denial of access to documents while in custody, Crown conduct, and the conduct of his trial lawyer.

  • Whether the appellant was denied procedural fairness through lack of legal representation, restricted access to documents in custody, and inadequate assistance at trial
  • Whether the Crown withheld evidence or otherwise acted improperly
  • Whether defence counsel at trial failed to properly cross-examine witnesses or tender relevant documents
  • Whether prior convictions (then under appeal in other proceedings) should have been taken into account at sentencing
  • Whether the sentences imposed were within the proper exercise of the sentencing discretion

Decision

The Court rejected the grounds of appeal against conviction. Having examined the numerous complaints raised, including those relating to representation, document access, Crown conduct, and jury selection, the Court found no basis to conclude there had been any miscarriage of justice warranting intervention.

On the sentencing appeal, the Court granted leave to appeal but dismissed the appeal. The concurrent sentences of three years total (minimum plus additional term) were found to be within the proper exercise of sentencing discretion, given the statutory maximum of ten years penal servitude for each offence and the significant amounts involved.

However, Hulme J identified an error in the sentencing judge's approach. Acting Judge Horler had declined to take into account the appellant's other convictions and sentences because those matters were then on appeal. The Court of Criminal Appeal held this was wrong: convictions are not to be treated as provisional pending appeal, and a sentencing judge must take prior convictions into account even if they are subject to a pending appeal. Any subsequent injustice to the offender if those convictions are later overturned can be remedied by a further application to the Court of Criminal Appeal.

The Court noted that the error in the sentencing judge's approach had the effect of producing a sentence that was likely too low rather than too high. The constraints on Crown appeals arising from the doctrine of double jeopardy meant this error was not easily correctable from the Crown's perspective. Despite identifying the error, the Court found the overall sentence was not manifestly inadequate and declined to intervene.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • A sentencing judge must take into account prior convictions even where those convictions are the subject of a pending appeal; treating convictions as provisional pending appeal is an error of principle, confirmed by the Court of Criminal Appeal applying Chamberlain v R (No 1) (1983) 153 CLR 514 and R v Wilson (1994) 34 NSWLR 1.
  • Where a sentencing error results in a sentence that is too low, the Crown's ability to seek correction is constrained by the doctrine of double jeopardy, making it difficult to remedy the error on appeal.
  • An offender who receives an unjustly high sentence because a later-overturned conviction was taken into account can seek review from the Court of Criminal Appeal.
  • In dismissing the conviction appeal, the Court was unpersuaded by multiple grounds of complaint spanning representation, document access, Crown conduct, and trial counsel performance, none of which was found to have caused a miscarriage of justice.
  • Concurrent sentences totalling three years for offences carrying a maximum of ten years each, and involving cheques with a face value in the hundreds of thousands of dollars, were treated as within the proper sentencing range.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), s 188 (receiving stolen property, carrying a maximum of 10 years penal servitude)

Cases:
- Chamberlain v R (No 1) (1983) 153 CLR 514
- R v Wilson (1994) 34 NSWLR 1
- Whitehorn v R (referenced in the grounds of appeal regarding the Crown's failure to call a witness)