Hartley v Skorka

[2010] QDC 319

DISTRICT COURT OF QUEENSLAND

CITATION:

Hartley & Anor v Skorka & Anor [2010] QDC 319

PARTIES:

ADAM HARTLEY
(Appellant)

V

WITOLD ZENON SKORKA
(Respondent)

AND

RENEE SUSAN KIRTZ
(Appellant)

V

DOMINIK PAWEL SKORKA
(Respondent)

FILE NO/S:

DC3610/09, DC3611/09

DIVISION:

Appellate

PROCEEDING:

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

26 August 2010

DELIVERED AT:

Brisbane

HEARING DATE:

10 May 2010

JUDGE:

Reid DCJ

ORDER:

1)   Appeal allowed

2)   Order that the respondents, Dominik Skorka and Witold Skorka, be sentenced to a period of 9 months’ imprisonment wholly suspended, with an operational period of 3 years.

3)   Order that in each case convictions be recorded.

4)   Order that the orders for restitution remain.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondents pleaded guilty to stealing – where respondents stole public money belonging to Brisbane City Council – where respondents made key to parking meters to remove money from them – whether imprisonment required – where respondents ordered to serve a community service order and it was completed prior to appeal

Justices Act 1886 (Qld) – s 222

Penalties and Sentences Act 1992 (Qld) – s 12

House v The King (1936) 55 CLR 429 – cited

R v Gadaloff [1998] QCA 458 – cited

Lammon v Emery [2010] QDC 123 – considered

Luong v Oliver D31 of 2001, Beenleigh, 8/10/2004 – considered

Groundwater v Arthur, Townsville, Appeal 21 of 2008, 7/3/08 – considered

The Queen v Holdsworth (1993) QCA 242 – considered

R v Hays; ex parte Attorney-General [1999] QCA 443 – applied

R v Sanders 2007 QCA 165 – applied

COUNSEL:

G. P. Cash for the Appellants

A. Boe for the Respondents

SOLICITORS:

Office of Director of Public Prosecutions for the Appellants

Boe Williams for the Respondents

1. Dominik Skorka and Witold Skorka were both sentenced on 27 November 2009 to perform 240 hours of unpaid community service.  Dominik had pleaded guilty to one charge of stealing between 1 March 2008 and 31 March 2009 and one of possessing tainted property.  Witold had also pleaded guilty to one count of stealing between 1 August 2008 and 31 March 2009.  No convictions were recorded.  Orders for payment of restutition were also made.

1. In both cases the Crown has appealed on the basis that the sentences were manifestly inadequate.

Background

1. Dominik was born on 25 July 1987 and so was 20-21 years of age at the time of his offending, and 22 when sentenced.  He had been convicted of stealing in February 2005 but no conviction was recorded and he was discharged absolutely.  On 20 March 2007 he was convicted of possessing tainted property on 31 January 2007 and fined $600.  Again, no conviction was recorded.  I note that this matter involved possession at night of keys of the sort later used by him in respect of the commission of the subject charges. It might therefore be considered a closely related offence.

1. His older brother,…