REGINA v MILOJEVIC [2001] NSWCCA 461

New South Wales Court of Criminal Appeal

CITATION : REGINA v MILOJEVIC [2001] NSWCCA 461 FILE NUMBER(S) : CCA 60449/00 HEARING DATE(S) : 19 November 2001 JUDGMENT DATE : 19 November 2001

Regina

PARTIES : v

John Jovan MILOJEVIC JUDGMENT OF : Barr J at 1; Adams J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/1024 LOWER COURT JUDICIAL Knight DCJ OFFICER :

COUNSEL : Mr P M Winch (Applicant) Mr L M B Lamprati (Crown) SOLICITORS : D J Humphries (Applicant) S E O'Connor (Crown)

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 CASES CITED: R v Qutami [2001] NSWCCA 353 DECISION : Application for leave to appeal against sentence is granted but the appeal is dismissed.

IN THE COURT OF CRIMINAL APPEAL

60449/00 BARR J ADAMS J MONDAY 19 NOVEMBER 2001

REGINA v JOHN JOVAN MILOJEVIC

JUDGMENT

1 BARR J: I agree with the orders proposed by Justice Adams. The orders are therefore as his Honour has proposed. 2 ADAMS J: John Jovan Milojevic seeks leave to appeal from a sentence imposed on him in the District Court on 13 June 2000 for the offence of threatening to use an offensive weapon with intention to hinder lawful apprehension. 3 This crime carries a maximum penalty of twelve years' imprisonment. In sentencing the applicant to a term of five years five months and fifteen days imprisonment (commencing 17 December 1999 and expiring on 1 June 2005) the learned sentencing Judge took into account, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999, seven outstanding charges which arose out of the circumstances leading to the offence of which the applicant was convicted. 4 The applicant, who is a heavy drinker, visited a friend of his in the late evening of 3 June 1999, where he became involved in an argument. After refusing to leave the premises he was physically removed after making threats against his friend and his friend's family. As he left the home, he smashed a side mirror on a vehicle parked in the driveway and, after making further threats, eventually left to return home. The breaking of the mirror was the seventh charge taken into account. 5 The applicant returned to his mother's house where, with his de facto, Ms Myer, and his three-year-old daughter Emily, he lived with his mother. Ms Myer was in bed asleep with Emily. The applicant came into the room and demanded money. When Ms Myer told him that she had earlier given him all the money she had, he threatened to start smashing the place apart if she did not give him more. He started screaming and swearing at Ms Myer, spat in her hair and face, then grabbing her hair, started pulling and digging his knuckles into her head. This assault was the first charge taken into account. 6 Not surprisingly, Emily had woken by this time and started to scream. Ms Myer called out to the applicant's mother to ring the police. The applicant let her go, and she walked out of the bedroom carrying Emily, making for the front door. The applicant came close to her and shouted that if she walked out the door, he would kill Emily, who he grabbed from Ms Myer's arms. 7 Mrs Milojevic crossed the road to go to a neighbour's home and was followed by Ms Myer. The applicant put the child down and she walked across to Ms Myer, followed by the applicant who verbally abused her. Demanding that Ms Myer give Emily to him, the applicant threatened otherwise to kill Emily. He grabbed her by the arm and tried to pull Emily away from Ms Myer. This assault on Emily gave rise to the fifth charge taken into account. 8 As Ms Myer took Emily's other arm to stop the applicant pulling her away, she lost her balance and fell over. The applicant continued to verbally abuse her, kicked her in the throat, pulled her hair and taking her right ear, started to pull it, causing considerable pain. Mrs Milojevic, the applicant's mother, went over to help Ms Myer and stopped the applicant from taking Emily, but the applicant, letting go of Ms Myer, grabbed her by her arms and threw her onto the ground, causing injury to her chest and left knee. This assault, occasioning actual bodily harm, was the second outstanding charge. 9 The applicant then let his daughter go and returned to his mother's house. The police had been contacted and when they arrived about fifteen minutes later, a fire was alight in the front room of the dwelling. The applicant was standing at the open front door with a container of some kind of accelerant which he was squirting on the front porch and which had ignited. Police officers approached the applicant and, when they were about three metres away, he raised the container of accelerant and pointed it towards them, threatening that if they came any closer he would spray them and set them alight. The applicant re-entered the house and closed the front door. 10 Further police were called to the scene. The applicant could be heard smashing items within the dwelling and a short time later, again opened the front door, this time carrying a 30-centimetre kitchen knife. He demanded a telephone call to his father. An inspector of police approached him and told him that he could not give him a phone until he explained what was happening. The applicant swore at him, threatened to "torch the place", slammed the front door shut and started to smash things inside. Arrangements were made for further police resources to come to the scene. The applicant came to the door of the house with the knife in his hands and threatened and abused police, fire brigade and ambulance personnel. 11 Shortly after members of the Tactical Operations Unit arrived, the applicant opened the front door of the house and yelled further threats towards his family and police. He then slammed the front door closed and minutes later flames were seen at the window of the lounge room, setting fire to the house. This constitutes the third charge taken into account. 12 Shortly after this, police from the Tactical Operations Unit entered the house and, after a brief struggle, the applicant was arrested. The fire brigade then entered and extinguished the fire. Two small plastic satchels containing marijuana were found. The windows on one side of Mrs Milojevic's car had also been smashed. These offences gave rise to outstanding charges respectively numbered 4 and 6. 13 The applicant, who was 28 years of age at the time of the offence, has an unfortunate record including the malicious damage of property, assault, assaulting police and resisting arrest. The conclusion of the learned trial Judge that the applicant was "a violent person who has a history, when the police become involved of both assaulting them and resisting arrest" was completely justified. 14 The offences in respect of which the applicant was sentenced were all committed whilst he was on a recognisance following his conviction for cultivating a prohibited plant. Even worse, they were committed whilst he was on bail for the offence of common assault, with which he had been charged in March 1999. These offences were serious offences, and there can be no doubt that both Ms Myer and the applicant's mother would have been terrified by the applicant's behaviour. 15 The applicant pleaded guilty in the local court. His Honour, in what seems to me to be a generous finding, considered that there was a prospect that a jury might not have been satisfied that the applicant had the specific intent of preventing lawful apprehension by virtue of what his Honour described as his "ingestion of alcohol and taking of other drugs". There does not seem to me to be any convincing evidence that the applicant was significantly affected by alcohol, let alone that he had been taking other drugs, but it may be that this was said from the bar table and not disputed by the Crown Prosecutor. Accordingly, his Honour did not deal with the plea of guilty as comprising nothing more than recognition of the inevitable. 16 The learned sentencing Judge accepted that the applicant had a good work history, and that he was subjected to considerable violence in the home as he was growing up which, he thought, in turn, led to the applicant's own violent behaviour. 17 His Honour also accepted that the applicant had problems with alcohol and other substance abuse, which had been recognised by him, and in respect of which he was taking active steps to deal with. There was evidence that the applicant was genuinely remorseful for his behaviour on the night in question, and also expressed emotional distress concerning his separation from his daughter Emily. 18 In the R v Qutami [2001] NSWCCA353 Justice Smart (with whom the Chief Justice agreed as to this matter) said (at 58-59), "There is one further general observation. In this case reliance appears to have been placed on statements made by the prisoner to psychiatrists and a psychologist. While those statements are admissible in evidence, considerable caution should be exercised in relying upon them when there is no evidence given by the prisoner. In many cases, only very limited weight can be given to such statements. There has been a noticeable and disturbing tendency of more recent years for prisoners on a sentence hearing not to give evidence and to rely on statement made to experts. Prisoners should realise that if this course is taken, great caution will be exercised in respect of the weight, if any, given to those statements." 19 If I may say so, with respect, I consider this observation to be both correct and applicable to the present case. I would, however, make the observation that it does not seem to me appropriate that the Crown should submit that no or little weight should be given to reports of remorse and contrition contained in statements made by experts, still less in respect of the opinions, if any, in that respect expressed by those experts if the Crown does not clearly indicate that it disputes the weight to be given to those reports or opinions. This is contrary to general principle. 20 The learned trial Judge took the applicant's plea of guilty into account in his favour both as evidence of contrition and remorse, and because it saved the State the time and trouble and expense of a criminal trial. I would have added that it also spared Mrs Milojevic and Ms Myer the distress and inconvenience of giving evidence about what must have been a very frightening experience. 21 It is submitted that his Honour erred in law by giving the applicant the benefit of the finding that, though strong, the evidence was not such as to make conviction on a trial inevitable in respect of the utilitarian value of the plea of guilty as distinct from the presence of contrition or remorse. In the circumstances, bearing in mind that his Honour's judgement was ex tempore, I consider that it is likely that this ascription was a mere error of expression. But, even if I am wrong about this, I do not see that this matter is an error which bears significantly, if at all, upon the sentencing process. In respect of remorse and contrition, all too frequently this is exhibited when the wrong-doer is sober and vanishes with his next drink. 22 More substantively, Mr Winch on the applicant's behalf, submitted that his Honour did not advert to the issue of remorse and contrition except in so far as it may have been displayed by the plea of guilty at the earliest opportunity. His Honour had the reports which referred to the applicant's remorse before him, and referred to matters that were in those reports. In the context of an ex tempore judgement in the District Court I would not be prepared to accept that his Honour did not consider that the applicant had exhibited remorse in addition to that which was shown by his plea of guilty. However, if I may say so with respect, I think it is desirable that this aspect, which is a most material one for sentence, should be specifically referred to in sentence remarks, otherwise criticism might be made in this Court, and not inappropriately, if the offender is aggrieved by the apparent omission to have due regard to the matter. The applicant relies on Judicial Commission statistics compiled in relation to this offence showing head sentences ranging from six months to six years and minimum terms from six months to four and a half years. When controlled for offenders who pleaded guilty, had matters on a form one and priors of a different kind, the cohort numbers four. I note here, however, that it is not entirely correct to say that this offender had no priors of a similar kind to that offence in respect of which he now seeks to appeal. As I have already mentioned, his record contains a number of assaults involving police, and where he was charged with resisting arrest. Of course, those charges are not so serious as that for which he was convicted in the District Court. 23 The range of head sentences for this group is between eighteen months and five years with minimum terms between six months and two and a half years. In my view, a cohort of four is far too small to permit the sentences to be regarded as setting an indicative or useful tariff. The applicant submits, with more effect, that the twelve cases under s 33B of the Crimes Act 1900 which have been considered by the Court of Criminal Appeal since 1994 show, at least, minimum terms or non-parole periods significantly less than that which was imposed in this case. However, it should be borne in mind that the offences taken into account, leaving aside the outstanding charges concerning the property offences not involving burning and the possession of marijuana, were very far from trivial. 24 In addition, the circumstances surrounding the offence of hindering lawful apprehension involving the threats to set police on fire, the wielding of a large knife and setting fire to his mother's house bespeak a very serious degree of criminality. This is, as I have mentioned, aggravated for the purpose of assessing any mitigation by the fact that the applicant was both on a recognisance, and on bail at the time. I have been troubled by the sentence imposed here when compared with those considered by the Court of Criminal Appeal, and I think it is important to maintain a clear distinction between those cases where there is an actual attempt to inflict injury on the one hand, and those where such injury is threatened but not actually attempted to be executed. However, I am of the view that having regard to the whole of the circumstances, there does not seem to be such a disparity as to mark error in the learned sentencing judge. In particular, the fact that the accused was subject to bail conditions and a recognisance at the time, and asked the Court to take into account the series of offences involving serious violence and setting fire to property are serious aggravating factors. Merely that this Court might not have imposed the same sentence as that which is imposed below is not, as this Court has said on many occasions, an appropriate basis for allowing an appeal, the foundation of which is a manifest error in the sentencing judge. 25 I am of the view that, as no such error has been shown, the application for leave to appeal against sentence should be granted, but the appeal should be dismissed. ***********************