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Court of Criminal Appeal 27 February 2004

Regina v Pavicevic

[2004] NSWCCA 80

Also reported as 144 A Crim R 163
DrugsTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCING PRINCIPLES DRUG COURT

Citation: Regina v Pavicevic [2004] NSWCCA 80
Court: New South Wales Court of Criminal Appeal
Date: 27 February 2004
Judge(s): James J (sitting as a single judge pursuant to s 5AF(3) of the Criminal Appeal Act)

Background

The appellant had pleaded guilty in the Local Court to fifteen offences committed between May and December 2000, including breaking and entering, receiving stolen goods, and weapons possession. In May 2001, the Parramatta Drug Court imposed initial sentences and enrolled the appellant in a drug program, suspending the execution of those sentences for the program's duration.

The appellant's participation in the program was uneven. After some months of satisfactory progress, his compliance deteriorated significantly from early 2002, with repeated drug use, missed court appearances, and ultimately the commission of a further fourteen offences between March and July 2002. The Drug Court terminated the program in August 2002 on the basis that the appellant had failed to comply and was unlikely to make further progress.

On 11 November 2002, Judge Milson reconsidered the initial sentences under s 12 of the Drug Court Act and also sentenced the appellant for the further offences. The appellant appealed, contending the final sentences were excessive.

  • Whether the appeal was properly heard by a single judge rather than a three-judge bench, given s 5AF(3) of the Criminal Appeal Act.
  • Whether the final sentences imposed by Judge Milson, after termination of the drug program, were excessive in the circumstances.
  • Whether the Court of Criminal Appeal could be satisfied, under s 6(3) of the Criminal Appeal Act, that lesser sentences were warranted in law and should have been passed.

Decision

Before turning to the merits, James J noted a procedural point: the appeal had initially been listed before three judges, but s 5AF(3) of the Criminal Appeal Act provides that appeals of this kind are to be heard by a single judge directed by the Chief Justice. The Chief Justice having made such a direction, James J heard and determined the appeal alone.

On the substance, the court considered the very large number of offences for which final sentences were being imposed, and the fact that Judge Milson was exercising the jurisdiction of the Local Court, meaning restrictions on maximum penalties and the accumulation of sentences applied. The appellant argued those restrictions made meaningful comparison with District Court sentencing inappropriate.

James J accepted that Local Court sentencing constraints were relevant to assessing the sentences, but nonetheless concluded that the final sentences imposed were very lenient, even when those constraints were taken into account. Because s 6(3) of the Criminal Appeal Act requires the appellate court to be satisfied that some other sentence, less severe than the one imposed, was warranted in law and should have been passed, and James J could form no such opinion, the appeal could not succeed. No lesser sentence would have been warranted in law.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Under s 5AF(3) of the Criminal Appeal Act, an appeal from a Drug Court sentence is to be heard and determined by a single judge of the Supreme Court, not a three-judge bench of the Court of Criminal Appeal.
  • A conviction for the appellate court to intervene on a sentence appeal requires satisfaction under s 6(3) of the Criminal Appeal Act that some lesser sentence was warranted in law and should have been imposed. Where existing sentences are very lenient, this threshold cannot be met.
  • In dismissing the appeal, the Court confirmed that the Local Court sentencing jurisdiction, with its restrictions on maximum penalties and the accumulation of sentences, is a relevant consideration when assessing the appropriateness of final sentences imposed by the Drug Court.
  • Under s 12 of the Drug Court Act, when a drug program is terminated, the Drug Court reconsidering initial sentences must take into account the nature of the offender's participation in the program, including both positive and negative aspects.
  • Leniency in the original sentences, rather than severity, can be a complete answer to an offender's appeal against the final sentences imposed after program termination.

Legislation and Cases Referenced

Legislation:
- Drug Court Act (NSW), ss 7, 10, 12
- Criminal Appeal Act (NSW), ss 5AF, 6(3)
- Crimes (Sentencing Procedure) Act (NSW)

Cases:
- R v Ebsworth [2002] NSWCCA 465
- R v Henare [2003] NSWCCA 376