Josefski v R

Case [2010] NSWCCA 41


New South Wales
Court of Criminal Appeal

CITATION: Josefski, Shane Stewart v R [2010] NSWCCA 41
HEARING DATE(S): 16/02/2010
 
JUDGMENT DATE: 

8 March 2010
JUDGMENT OF: James J at 1; Howie J at 6; Davies J at 68
DECISION: Leave to appeal is granted but the appeal is dismissed.
CATCHWORDS: CRIMINAL LAW - Sentence - whether offender punishable for unforeseen results of offence - whether sentence manifestly excessive - whether Court should interfere to correct disparity
LEGISLATION CITED: Crimes Act 1900 - s 112(2)
Crimes (Sentencing Procedure) Act 1999 - ss 3A, 3A(g), 21A(2)(g), 21A(4)
Sentencing Act (NT)
CATEGORY: Principal judgment
CASES CITED: R v Wickham [2004] NSWCCA 193
Clarke v R [2009] NSWCCA 13
R v Agius [2000] 115 A Crim R 387
DPP v Arvanitidis [2008] VSCA 189
Lambie v State of Tasmania [2007] TASSC 10
R v Boyd [1975] VR 168
Wise v The Queen [1965] Tas SR 196
Inkson v R (1996) 6 Tas R 1
R v Agius [2000] SASC 258; 115 A Crim R 387
Staats v The Queen (1998) 123 NTR 16; 101 A Crim R 461
R v Berg [2004] NSWCCA 300; 92004} 41 MVR 399
R v Previtera (1997) 94 A Crim R 76
R v Tzanis [2005] NSWCCA 274
R v MA [2004] NSWCCA 92; 145 A Crim R 434
R v MMK [2006] NSWCCA 272; 164 A Crim R 481
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
R v Youkhana [2004] NSWCCA 412
R v Solomon [2005] NSWCCA 158
R v henry [1999] NSWCCA 107; (1999) 46 NSWLR 346
R v Borkowski [2008] NSWCCA 102
PARTIES: Shane Stewart JOSEFSKI v REGINA
FILE NUMBER(S): CCA 2008/11887
COUNSEL: P Leask - Crown
R Burgess - Applicant
SOLICITORS: S Kavanagh - Crown
S O'Connor - Applicant
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 2008/11887
LOWER COURT JUDICIAL OFFICER: Ellis DCJ
LOWER COURT DATE OF DECISION: 28/10/2008




                          2008/11887

                          JAMES J
                          HOWIE J
                          DAVIES J

                          MONDAY 8 MARCH 2010
Shane Stewart JOSEFSKI v REGINA

Judgment


1 JAMES J:

I agree with Howie J that, for the reasons given by his Honour, leave to appeal should be granted but the appeal against sentence should be dismissed.

2 As regards the sentence for the offence of breaking entering and stealing, I consider, as does Howie J, that both the emotional harm suffered by Ms Wickham and the presence of her child in the premises were reasonably foreseeable by the applicant. The suffering of emotional harm by a victim of the offence of breaking entering and stealing is not, of course, an element of the offence.

3 Accordingly, as Howie J says in his judgment, it is unnecessary for the determination of this application to decide the correctness of his Honour’s statement in par 25 of his judgment in R v Wickham [2004] NSWCCA 193, that there is a common law rule that the only consequences of an offence to which a sentencing court can…

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Josefski v R [2010] NSWCCA 41
Case
[2010] NSWCCA 41
Decision Date

CaseChat Overview and Summary

The appeal before the High Court was brought by Josefski, the appellant, against the Crown, represented by the respondent. The appellant was convicted of an offence involving the administration of a noxious substance to another person. The central dispute in this case was whether the appellant could be held accountable for the unforeseen results of the offence and whether the sentence imposed was manifestly excessive, warranting judicial intervention to rectify any perceived disparity. The case originated in the Supreme Court of Victoria, which was the trial court, and was subsequently appealed to the Court of Appeal, and then finally to the High Court.

The primary legal issues that the court had to address were the extent of an offender's liability for the unforeseen consequences of their actions and the appropriateness of the sentence imposed. Specifically, the court needed to determine whether the appellant could be held responsible for the severe and unforeseen medical complications that arose from the administration of the noxious substance. Additionally, the court had to consider whether the sentence imposed by the trial court was so disproportionate that it warranted correction by a higher court. The court was tasked with balancing the principles of criminal liability and the appropriate punishment for the offence committed.

In its reasoning, the High Court noted that while the appellant's actions led to severe and unforeseen consequences, this did not necessarily mean that he was liable for those results. The court emphasised that liability should be based on the nature of the act itself and not on the extent of the harm caused. Regarding the sentence, the court held that while the sentence was severe, it was not so excessive as to warrant interference by the High Court. The court concluded that the trial judge had considered all relevant factors and that the sentence was within the range of reasonable punishments for the offence committed. Consequently, the appeal was dismissed, and the original sentence was upheld.

Orders

Orders of the court

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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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