REGINA v JELISAVAC [2003] NSWCCA 107

REGINA v JELISAVAC [2003] NSWCCA 107

The sentencing judge erred by allowing an overall discount of only about 25% for both the utilitarian value of the early guilty pleas and the applicant's contrition. Given the number of offences and that for some offences the applicant's confession was the only substantial evidence, the pleas themselves warranted a discount at the top of the Thomson & Houlton range, in the order of 25%. A further allowance should have been made for genuine remorse, contrition, and rehabilitation. The head sentence remained appropriate, but the non-parole period should be reduced by one year.

Jurisdiction
Australia
Judgment Date
16 April 2003
Procedural Posture
Sentence Appeal / Application for Leave to Appeal and Appeal Against Sentence in the New South Wales Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal allowed as to the sentences on counts 3, 8 and 9; sentence on count 4 also quashed and adjusted; head sentence left unchanged but non-parole period reduced by one year.
Legal Topics
['plea of Guilty' 'utilitarian Value of Guilty Plea' 'contrition and Remorse' 'non Parole Period' 'special Circumstances' 'drug Addiction and Rehabilitation' 'form 1 Offences']
['criminal Law' 'sentencing' 'criminal Procedure'] ['plea of Guilty' 'utilitarian Value of Guilty Plea' 'contrition and Remorse' 'non Parole Period' 'special Circumstances' 'drug Addiction and Rehabilitation' 'form 1 Offences']

Case Brief

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Procedural Posture

Sentence Appeal / Application for Leave to Appeal and Appeal Against Sentence in the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the sentencing judge gave adequate separate allowance for the applicant's contrition and remorse in addition to the utilitarian value of his early pleas of guilty." 'Whether a less severe sentence was warranted by reducing the non-parole period while leaving the head sentence unchanged.' 'Whether special circumstances justified departure from the statutory calculation in s 44(2) of the Crimes (Sentencing Procedure) Act 1999.']

Ratio Decidendi

The sentencing judge erred by allowing an overall discount of only about 25% for both the utilitarian value of the early guilty pleas and the applicant's contrition. Given the number of offences and that for some offences the applicant's confession was the only substantial evidence, the pleas themselves warranted a discount at the top of the Thomson & Houlton range, in the order of 25%. A further allowance should have been made for genuine remorse, contrition, and rehabilitation. The head sentence remained appropriate, but the non-parole period should be reduced by one year.

Court Disposition

Leave to appeal granted; appeal allowed as to the sentences on counts 3, 8 and 9; sentence on count 4 also quashed and adjusted; head sentence left unchanged but non-parole period reduced by one year.

Orders

  • ['Leave to appeal be granted.' 'The appeal be allowed as to the sentences on Counts 3, 8 and 9 and such sentences be quashed.' 'In respect of count 3, the applicant be sentenced to 7 years 6 months imprisonment to commence 02.08.01 with a non-parole period of 3 years 6 months to expire on 01.02.05.' 'In respect of...