AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 19 November 2001

REGINA v MILOJEVIC

[2001] NSWCCA 461

Assault & violenceDomestic & family violencePublic order & justice offences

Citation: Regina v Milojevic [2001] NSWCCA 461
Court: NSW Court of Criminal Appeal
Date: 19 November 2001
Judge(s): Barr J, Adams J

Background

The applicant, a 28-year-old man with a prior criminal record, was sentenced in the District Court on 13 June 2000 following a guilty plea to threatening to use an offensive weapon with the intention of hindering lawful apprehension. The maximum penalty for that offence is twelve years' imprisonment.

The offending arose out of a violent and chaotic night in June 1999. The applicant physically assaulted his de facto partner and his three-year-old daughter, assaulted his own mother, and then confronted police at the front door of his mother's house while squirting an accelerant and threatening to set officers alight. He later appeared with a large kitchen knife, made further threats to police, fire brigade and ambulance personnel, and ultimately set fire to the house.

The sentencing judge imposed a term of five years, five months and fifteen days, commencing 17 December 1999, and also took into account seven further charges under section 33 of the Crimes (Sentencing Procedure) Act 1999. Those additional charges arose from the same course of conduct and included assaults on the partner and mother, arson, malicious damage, and possession of marijuana. The applicant sought leave to appeal against the sentence as manifestly excessive.

  • Whether the sentence of five years, five months and fifteen days was manifestly excessive when compared to sentences imposed in comparable cases.
  • Whether the sentencing judge erred in the weight given to the applicant's guilty plea, given the argument that intoxication may have undermined proof of specific intent.
  • Whether the sentencing judge gave appropriate weight to mitigating factors, including the applicant's background, remorse, and steps taken to address alcohol and substance abuse.

Decision

Adams J (with whom Barr J agreed) considered the applicant's submission that comparable cases demonstrated a pattern of significantly lower minimum terms or non-parole periods. The Court acknowledged some concern about the sentence when measured against that broader cohort, but ultimately found the comparison did not reveal a disparity sufficient to demonstrate error. The Court noted that a small group of four directly analogous cases was too limited to establish a reliable tariff.

On the question of the guilty plea, Adams J observed that the sentencing judge had treated the plea generously, accepting a submission from the bar table that intoxication might have created real doubt about specific intent. The Court was not entirely persuaded there was convincing evidence of significant intoxication, but did not overturn that finding.

The Court gave particular weight to the serious aggravating circumstances: the threats to set police on fire using an accelerant, the wielding of a kitchen knife, the deliberate setting alight of his mother's house, and the fact that all offending occurred while the applicant was subject both to a recognisance (following an earlier conviction for cultivating a prohibited plant) and to bail conditions relating to a pending assault charge. The Court drew a distinction between offences involving actual attempts to inflict injury and those involving threatened but unexecuted harm, while finding that the overall circumstances here justified the sentence imposed.

Adams J concluded that the mere fact the Court of Criminal Appeal might itself have imposed a different sentence is not a sufficient basis for allowing an appeal. The foundation required is a demonstrated manifest error in the sentencing judge's reasoning, and no such error was established.

Orders Made

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

Key Takeaways

  • No error was established in the sentence despite the Court acknowledging it had some concern when comparing the outcome to other cases in the same category.
  • A cohort of only four comparable cases was considered too small to function as a reliable or indicative tariff for sentencing purposes.
  • Under the established appellate principle applied here, a sentence will not be disturbed simply because the appellate court might have imposed something different; a manifest error in the sentencing court's exercise of discretion must be demonstrated.
  • Offending committed while the accused was subject to both a recognisance and bail conditions constitutes a serious aggravating factor that can justify a sentence at the higher end of the range.
  • In dismissing the appeal, the Court reinforced the distinction between cases involving actual attempts to inflict injury and those involving threats alone, while making clear that threats of the gravity present here (including threatening to set police alight) can still support a substantial sentence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33
- Crimes Act 1900 (NSW), s 33B

Cases:
- R v Qutami [2001] NSWCCA 353