Vulovic v R [2013] NSWCCA 340

Vulovic v R [2013] NSWCCA 340

The sentencing judge's findings were not inconsistent with the jury's verdict because the verdict did not require acceptance of every possible provocative factor and the judge was entitled to make his own sentencing findings consistently with the verdict. It was open to find only offensive remarks and a neck hold relevant to provocation, to assess the provocation as not high, and to find that the applicant had not proved a causal nexus between his mental conditions and the offence. It was also open to give normal weight to general deterrence and to reject the complaint that onerous custody had been overlooked. Leave was granted but the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
20 December 2013
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal against sentence granted. Appeal dismissed.
Legal Topics
['manslaughter by Provocation' 'sentence Appeal' 'findings of Fact After Jury Verdict' 'mental Condition and Moral Culpability' 'general Deterrence' 'onerous Custody' 'special Circumstances']
['criminal Law' 'sentencing'] ['manslaughter by Provocation' 'sentence Appeal' 'findings of Fact After Jury Verdict' 'mental Condition and Moral Culpability' 'general Deterrence' 'onerous Custody' 'special Circumstances']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the sentencing judge made findings about provocation that were inconsistent with the jury's verdict of manslaughter rather than murder." 'Whether the sentencing judge erred in finding that the provocative conduct did not constitute a high degree of provocation.' "Whether there was a causal nexus between the applicant's mental conditions and the crime." "Whether the applicant's mental conditions reduced the weight to be given to general deterrence." 'Whether custody would be more onerous for the applicant by reason of his mental condition.']

Ratio Decidendi

The sentencing judge's findings were not inconsistent with the jury's verdict because the verdict did not require acceptance of every possible provocative factor and the judge was entitled to make his own sentencing findings consistently with the verdict. It was open to find only offensive remarks and a neck hold relevant to provocation, to assess the provocation as not high, and to find that the applicant had not proved a causal nexus between his mental conditions and the offence. It was also open to give normal weight to general deterrence and to reject the complaint that onerous custody had been overlooked. Leave was granted but the appeal was dismissed.

Court Disposition

Leave to appeal against sentence granted. Appeal dismissed.

Orders

  • ['Grant leave to appeal.' 'Dismiss the appeal.']