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Court of Criminal Appeal 3 April 2013

Cvetkovic v R

[2013] NSWCCA 66

Assault & violenceDomestic & family violence
CRIMINAL LAW CRIMINAL PROCEDURE APPEAL APPEAL OUT OF TIME APPLICANT WITH MAJOR DEPRESSIVE ILLNESS EXTENSION OF TIME GRANTED CRIMINAL LAW

Citation: Cvetkovic v R [2013] NSWCCA 66
Court: Court of Criminal Appeal, New South Wales
Date: 3 April 2013
Judge(s): Price J, McCallum J, Schmidt J

Background

The appellant was convicted by jury of wounding with intent to murder his former wife, contrary to s 27 of the Crimes Act 1900. The offence carries a maximum penalty of 25 years' imprisonment and a standard non-parole period of 10 years. The sentencing judge imposed a non-parole period of 13 years with a balance of term of 4 years and 4 months.

The attack occurred on 6 June 2007, when the appellant produced a 30-centimetre serrated gyprock saw and repeatedly stabbed the victim while she was seated in the driver's seat of a car with her seatbelt fastened. The sentencing judge found the attack was premeditated, describing it as falling little short in culpability of murder. A prior conviction appeal had been dismissed by the Court of Criminal Appeal in 2010, and special leave to appeal to the High Court was subsequently refused.

The appellant, who had represented himself throughout all proceedings, filed his application for leave to appeal against sentence on 3 September 2012, nearly three years out of time. He had been diagnosed with severe depression and had experienced multiple psychotic episodes in custody. He remained fixated on challenging his conviction rather than appealing his sentence, and had not put any submissions or evidence before the sentencing judge at the time of sentencing.

  • Whether an extension of time should be granted for a sentence appeal filed almost three years out of time, given the appellant's mental illness, lack of legal representation, and fixation on his conviction appeal.
  • Whether the sentencing judge erred in the approach to the standard non-parole period under Muldrock v R [2011] HCA 39.
  • Whether the sentencing judge placed excessive weight on premeditation and insufficient weight on the appellant's depressed mental state.
  • Whether the sentence of 13 years' non-parole period was manifestly excessive when compared to comparable cases.

Decision

Extension of time: The Court granted the extension despite the lengthy delay. McCallum J found that although the appellant's failure to engage with sentencing proceedings was technically a choice, it was made without legal advice and under the influence of fixated thinking associated with his mental illness. His subsequent failure to appeal in time was assessed in the same context. The Court accepted that the appellant had remained in a fragile mental state and had consistently prioritised overturning his conviction above all else.

The Muldrock ground: The appellant argued that the sentencing judge had given too much weight to the standard non-parole period as a "guidepost," contrary to the High Court's later clarification in Muldrock v R that the standard non-parole period is simply a legislative benchmark, not a primary reference point. McCallum J concluded that even if any technical error in the judge's approach could be identified, the sentence itself was not shown to be unreasonable or plainly unjust on the Muldrock approach.

Premeditation and mental state: The Court acknowledged that the appellant had been suffering from major depression at the time of the offence and that this was a relevant mitigating factor. However, McCallum J was not persuaded that the sentencing judge had placed excessive weight on premeditation or given inadequate weight to the appellant's mental condition. The sentencing judge had the benefit of hearing all the evidence and observing the trial, and that advantage is not lightly overridden on appeal.

Comparability: The Court examined comparable decisions, including R v Macadam-Kellie [2001] NSWCCA 170 and R v Hamid [2006] NSWCCA 302, and found the sentence fell within the proper range. McCallum J noted the sentence appeared stern, possibly reflecting the absence of any mitigation material placed before the sentencing judge, but was not satisfied it was outside the proper range or that the sentencing discretion had miscarried. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Extension of time to bring the application for leave to appeal granted.
  • Leave to appeal against sentence granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • An extension of time for a sentence appeal may be granted even after a delay of nearly three years where the applicant's mental illness, lack of legal representation, and cognitive fixation adequately explain the delay, taken together.
  • Under the Muldrock v R framework, the standard non-parole period operates as a legislative benchmark rather than a primary determinative factor; an appeal based on a sentencing judge's overly mechanistic use of that benchmark will still fail unless the resulting sentence is shown to be unreasonable or plainly unjust.
  • The advantage a sentencing judge holds from presiding over the trial, absorbing the evidence and the atmosphere of the proceedings, is a significant consideration on appeal. Appellate courts will not lightly override the weight a trial judge assigns to sentencing factors.
  • No error was established in how the sentencing judge balanced the appellant's depressive illness against the high degree of premeditation involved in a serious violent offence.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a stern sentence may nonetheless fall within the proper range, particularly where the offender placed no mitigating material before the sentencing court.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 27 (wounding with intent to murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A (standard non-parole periods)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Appeal Rules, reg 3B
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)

Cases:
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
- Cvetkovic v R [2010] NSWCCA 329
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179
- R v Macadam-Kellie [2001] NSWCCA 170
- Christodoulou v The Queen [2008] NSWCCA 102
- R v Baker [2000] NSWCCA 85
- R v Zegura [2006] NSWCCA 230
- R v Glencourse (1995) 78 A Crim R 256
- R v Quach [2002] NSWCCA 173