Jovanovic v Alexander [2009] ACTSC 99 (14 August 2009)

Last Updated: 22 September 2009

MIROSLAV JOVANOVIC v STEWART ALEXANDER [2009]
ACTSC 99 (14 August 2009)

CRIMINAL LAW – appeal from sentence imposed in Magistrates Court (ACT) – self-represented appellant – claim of manifest excess – sentencing magistrate alleged to be angry with appellant over refusal to plead guilty to other charges – whether this influenced sentencing magistrate – gravity of different driving offences – obligation not to impose crushing sentence – whether 6 months imprisonment for mature man with considerable previous experience of imprisonment was a crushing sentence – relevance of activities since appellant’s release on appeal bail – relevance of appellant’s domestic problems, especially those apparently resulting from release on bail – no grounds for upholding appeal – appeal dismissed – re-sentence to take account of time on remand after appeal lodged.

Criminal Code 2002 (ACT), s 308
Road Transport (Driver Licensing) Act 1999 (ACT), s 32

R v Rossi (1988) 142 LSJS 451
R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 2 of 2009

Judge: Penfold J
Supreme Court of the ACT
Date: 14 August 2009

IN THE SUPREME COURT OF THE )
) No. SCA 2 of 2009
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: MIROSLAV JOVANOVIC

Appellant

AND: STEWART ALEXANDER

Respondent

ORDER

Judge: Penfold J
Date: 14 August 2009
Place: Canberra

THE COURT ORDERS THAT:

1. The appeal is dismissed, except to the extent required to re-sentence the appellant to take account of time spent on remand.
2. The appellant is sentenced, on the charges of driving while licence suspended and theft, to imprisonment for 2 months and 4 months respectively, to be served cumulatively and backdated to 6 June 2009.

Introduction

1. Miroslav Jovanovic has appealed against two sentences imposed on 8 January this year, being 2 months imprisonment for an offence of driving while his licence was suspended (as a first offender) and 4 months imprisonment for an offence of theft under s 308 of the Criminal Code 2002, to be served consecutive on the 2 months imprisonment. Mr Jovanovic lodged his appeal on 14 January this year, and had served a bit over two months of the total term of 6 months when he was released on bail.
2. Mr Jovanovic represented himself at the appeal hearing. The notified ground of appeal was that the sentences were manifestly excessive in all the circumstances. At the hearing, Mr Jovanovic raised several matters, some of which could have been relevant to a claim of manifest excess and others of which might have been relevant to some other kind of error on the part of the sentencing magistrate. I shall deal with them all, but without trying to categorise them further.

Sentencing magistrate’s attitude

3. First, Mr Jovanovic claimed that the sentencing magistrate had been angry at him as a result of his refusal to plead guilty to another charge of driving while suspended. This offence was alleged to have taken place on 14 November, four days after Mr Jovanovic was warned by police that his licence had been suspended because of unpaid fines and that he should not be driving, and five days before the 19 November offence to which he pleaded guilty and for which he was sentenced to 2 months imprisonment.
4. The sentencing magistrate apparently made some assumptions about Mr Jovanovic’s likely defence to the 14 November charge, and made the unfortunate comment that Mr Jovanovic “thought somehow between the 10th and 14th Tinkerbell came down and gave him a licence”.
5. Mr Jovanovic claims that he had pleaded not guilty to this other charge because he was not driving the car observed by police, not because he claimed to believe that he was licensed at that point, and that he had explained this to his counsel. However, the transcript indicates that his counsel, despite repeated questions from the magistrate, did not at any stage indicate that defence to the magistrate; rather, when the magistrate formulated the matter as “when he was told on the 10th that he didn’t have a licence he didn’t know on the 14th that he didn’t have a licence, but he knew on the 19th that he didn’t have a licence”, Mr Jovanovic’s counsel said “They’re my instructions, your Honour”.
6. I note Mr Jovanovic’s comments that the transcript does not give the full nuances of the magistrate’s demeanour, and I also reiterate my comment that the reference to “Tinkerbell” was unfortunate. On the other hand, it is clear from the transcript that, having listed the not guilty plea to be dealt with at another time, his Honour moved on to the sentencing at hand and conducted this appropriately. There is no indication in his Honour’s hearing of the sentencing matter, or in his sentencing remarks, that he was influenced by Mr Jovanovic’s determination to plead not guilty to other charges and indeed, as I suggested in argument, the magistrate may well have imposed slightly lighter sentences, possibly for the very reason that he had been aware that he had previously shown his irritation.

Gravity of driving offence

7. Mr Jovanovic asserted that his driving offence, namely driving while suspended, was not as serious as driving while disqualified. In fact, the penalties imposed by s 32 of the Road Transport (Driver Licensing) Act 1999 are identical for the two offences (for first offences, a maximum of 6 months imprisonment and for second and subsequent offences a maximum of imprisonment for one year).

Crushing sentences

8. Mr Jovanovic submitted that the two sentences should have been concurrent rather than cumulative, and that the sentencing magistrate was obliged not to impose a crushing sentence. Mr Jovanovic did not raise any grounds on which the sentences should have been concurrent, and I note that the offences concerned were offences of quite different kinds, and committed on completely separate occasions. Indeed, the only connection between the two offences was that the second offence was committed while Mr Jovanovic was on bail following the first offence. This does not entitle him to any sentencing concession.
9. As to the question of crushing sentences, I note that one of the purposes of the totality principle is to avoid the situation where, to quote King CJ in R v Rossi (1988) 142 LSJS 451 at 453:

...the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect...

10. The New South Wales Court of Criminal Appeal in R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [17] explained the notion of a crushing sentence in this way:

...an extremely long total sentence may be “crushing” upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospect as there may be of rehabilitation and reform. Of course, in many cases of multiple offending, the offender may not be entitled to the element of mercy entailed in adopting such a constraint.

11. I cannot see that a total sentence of 6 months imprisonment could be seen as “an extremely long total sentence”, especially when it included a sentence for an offence with a maximum penalty of 10 years imprisonment and was imposed on a mature man who has served many periods of imprisonment before. This is not a case involving a crushing sentence.

Availability of periodic detention

12. Mr Jovanovic also raised the possibility of serving the remainder of his sentence in periodic detention, but since the pre-sentence report before the sentencing magistrate identified him as unsuitable for periodic detention due to unresolved drug or alcohol issues, that would not have been available to me even on a re-sentencing exercise.

Time spent in residential rehabilitation

13. Mr Jovanovic told the court that since he was released on bail in March he has spent several months in residential rehabilitation, although he did not offer any independent evidence of this, or any advice from the rehabilitation providers about the progress he has made during that time. Rehabilitation undertaken by Mr Jovanovic since being released on bail would be relevant to any re-sentencing, but it does not seem to provide any ground on which to uphold his appeal.

Family problems

14. Mr Jovanovic also told the court about a range of family problems which would be exacerbated by his return to prison. In particular, he mentioned the fact that his wife was currently imprisoned until December and that there was some problem about the tenancy on his government house, which he claimed would be terminated if he were absent from the house for any further period, leaving his adult children with nowhere to live. If I had seen any basis on which to uphold Mr Jovanovic’s appeal and re-sentence him, I would have requested more convincing evidence of this housing problem, but in the circumstances, I cannot see that this information, even if correct, is relevant to determining the appeal. Mr Jovanovic must have been aware when he sought appeal bail that he risked returning to prison to serve the rest of his sentence, and the fact that splitting the sentence may have further complicated his domestic arrangements is not a ground for upholding the appeal.

Conclusion on appeal

15. As indicated, I have not found any ground for upholding Mr Jovanovic’s appeal and it must accordingly be dismissed, except that I will re-sentence him to the extent necessary to take account of the time he served in remand after his appeal was lodged and before he was granted bail; this time would otherwise not count towards the sentence he must complete.

Re-sentencing

16. Mr Jovanovic, please stand. I sentence you on the charges of driving while licence suspended and theft to imprisonment for 2 months and 4 months respectively to be served cumulatively and backdated to 6 June 2009. The total sentence of 6 months will therefore expire on 5 December this year. You may sit down.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Associate:

Date: 24 August 2009

Counsel for the appellant: Self represented
Counsel for the respondent: Ms K MacKenzie
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 14 August 2009
Date of judgment: 14 August 2009