Dargusch v Kosieradzki - [2010] QDC 391

DISTRICT COURT OF QUEENSLAND

CITATION:

Dargusch v Kosieradzki [2010] QDC 391

PARTIES:

ANDREW JOHN DARGUSCH
(appellant)
v
MICHAEL LUCAS KOSIERADZKI
(respondent)

FILE NO/S:

BD1788 of 2009

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane Magistrates Court

DELIVERED ON:

30 April 2010

DELIVERED AT:

Brisbane

HEARING DATE:

27 April 2010

JUDGE:

Dorney QC DCJ

ORDERS:

(1)The appeal is allowed.

(2)The sentences imposed in the Brisbane Magistrates Court on 18 June 2009 are varied, by ordering, instead of the cumulative sentences imposed, that the sentences imposed on 18 June 2009 be served concurrently with each other and concurrently with all other sentences being served.

(3)The parole eligibility date is fixed at 18 June 2009.

CATCHWORDS:

APPEAL AGAINST SENTENCE – Whether sentence manifestly excessive – appropriateness of cumulative sentence.

COUNSEL:

S. Ganasan for the Appellant

R. Marks for the Respondent

SOLICITORS:

Legal Aid Queensland for the Appellant

Director of Public Prosecutions for the Respondent

Introduction

The appellant, on his own plea, was convicted and sentenced on 18 June 2009 at the Magistrates Court Brisbane. The offences with which he was charged were: possessing a thing used in the commission of a crime (namely, in connection with the supply of a dangerous drug) (on 24 October 2008); and driving without a licence (disqualified by court order) (on 10 December 2008).

On the first offence he was sentenced to 3 months imprisonment; and on the second offence he was sentenced to 5 months imprisonment, as well as a disqualification from driving for a period of 30 months. The sentences imposed were cumulative on each other and on sentences already being served. A parole eligibility date was fixed at 18 June 2009.

The appellant was born in early 1976, was aged 32 in October and December 2008, and is presently aged 34.

Grounds of appeal

The appellant originally relied upon two grounds of appeal. They were, first, that the imposition of cumulative periods of imprisonment, cumulative upon a current order of imprisonment, is manifestly excessive, and, secondly, that the imposition of a cumulative sentence without giving the parties an opportunity to respond is a breach of natural justice.

In both written and oral submissions, the appellant merely pressed the issue of cumulative sentencing being manifestly excessive.

The Pre-sentence Custody Certificates

The first Certificate, dated 8 May 2009, concerning the appellant, was available for consideration by the learned sentencing Magistrate in June 2009. A further Certificate, dated 27 April 2010, has now been presented to the Court; see Exhibit “A” to the affidavit of Marc Lawrence Dressler filed 27 April 2010. But this Certificate is based on the sentencing under appeal being held to be ultimately effective. The earlier Certificate shows that the appellant was then serving a sentence for 3 years, with a start date of 6 March 2008, an end date of 5 March 2011, and a parole release date fixed at 27 April 2008. From the appellant’s criminal history in Queensland (Exhibit 1), the sentence was one imposed by the District Court at Brisbane on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dargusch v Kosieradzki

Details

AGLC: Dargusch v Kosieradzki [2010] QDC 391
Case: [2010] QDC 391
Decision Date: 30 April 2010

CaseChat Overview and Summary

Dargusch appealed against the sentence imposed by the Brisbane Magistrates Court, arguing that it was manifestly excessive and inappropriate given the cumulative nature of the sentences. The respondent, Kosieradzki, did not contest the appeal. The legal issues before the court were whether the sentence was manifestly excessive and whether the cumulative sentences were appropriate. The court had to consider the totality of the sentences and whether they were fair and just, taking into account the principles of sentencing and the circumstances of the case.

The court found that the cumulative sentences imposed were manifestly excessive and inappropriate. It held that the cumulative effect of the sentences was disproportionate to the nature and circumstances of the offences. The court noted that the sentences should reflect the overall culpability of the offender and should not result in an unduly harsh punishment. Given the cumulative nature of the sentences, the court considered it appropriate to order that the sentences be served concurrently rather than consecutively. This approach aimed to ensure a fair and balanced sentence that reflected the true gravity of the offences committed.

The appeal was allowed, and the sentences were varied to be served concurrently with each other and with any other sentences being served. The parole eligibility date was fixed at 18 June 2009, the date of the original sentencing. The court's decision emphasised the importance of proportionality in sentencing and the need to avoid imposing excessive or inappropriate cumulative sentences. The outcome reflects the court's commitment to ensuring that sentences are just and reflect the true nature of the offending behaviour.

Orders

Orders of the court

(1)The appeal is allowed.

(2)The sentences imposed in the Brisbane Magistrates Court on 18 June 2009 are varied, by ordering, instead of the cumulative sentences imposed, that the sentences imposed on 18 June 2009 be served concurrently with each other and concurrently with all other sentences being served.

(3)The parole eligibility date is fixed at 18 June 2009.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Dargusch v Kosieradzki [2010] QDC 391
PARTIES:	ANDREW JOHN DARGUSCH (appellant) v MICHAEL LUCAS KOSIERADZKI (respondent)
FILE NO/S:	BD1788 of 2009
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Brisbane Magistrates Court
DELIVERED ON:	30 April 2010
DELIVERED AT:	Brisbane
HEARING DATE:	27 April 2010
JUDGE:	Dorney QC DCJ
ORDERS:	(1)The appeal is allowed. (2)The sentences imposed in the Brisbane Magistrates Court on 18 June 2009 are varied, by ordering, instead of the cumulative sentences imposed, that the sentences imposed on 18 June 2009 be served concurrently with each other and concurrently with all other sentences being served. (3)The parole eligibility date is fixed at 18 June 2009.
CATCHWORDS:	APPEAL AGAINST SENTENCE – Whether sentence manifestly excessive – appropriateness of cumulative sentence.
COUNSEL:	S. Ganasan for the Appellant R. Marks for the Respondent
SOLICITORS:	Legal Aid Queensland for the Appellant Director of Public Prosecutions for the Respondent