Kotnowski v Richardson - [2019] WASC 369

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   KOTNOWSKI -v- RICHARDSON [2019] WASC 369
CORAM:   SMITH J
HEARD:   10 OCTOBER 2019
DELIVERED          :   11 OCTOBER 2019
FILE NO/S:   SJA 1119 of 2019
BETWEEN:   JACEK ANTONIO KOTNOWSKI
Appellant
AND
FINOLA RICHARDSON
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE B C GLUESTEIN
File Number             :   PE 34825 of 2019

Catchwords:

Criminal law and sentencing - Offence of gaining $1,435 by fraud by deceit - Whether sentence of 7 months' imprisonment manifestly excessive as to type of sentence

Legislation:

Criminal Code (WA), s 409(1)(c)
Environmental Protection Act 1986 (WA)
Planning and Development Act 2005 (WA)
Sentencing Act 1995 (WA), s 6(1), s 6(2), s 6(4), s 7(2), s 9AA, s 39(2), s 39(3), s 53(1), s 53(3)
Taxation Administration Act 1953 (Cth)

Result:

Appeal allowed
Appellant re-sentenced

Category: B

Representation:

Counsel:

Appellant	:	Mr A J Robson
Respondent	:	Ms M M Yeung

Solicitors:

Appellant	:	Legal Aid - Perth
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Anderson v The State of Western Australia [No 3] [2014] WASCA 190
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
DKN v The State of Western Australia [2018] WASCA 87
Durward v Belton [2012] WASC 479
Krencej v The State of Western Australia [2019] WASCA 82
Pollock v The State of Western Australia [2011] WASCA 133
Vargess v Hughes [2017] WASC 291
Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465

SMITH J:

The appeal - application to extend time and the result

After hearing counsel for the parties on 10 October 2019, I made orders that:
1.The affidavit of Natalie Sinton sworn on 19 September 2019 be admitted into evidence in the appeal.
2.The application for an extension of time to appeal is allowed.
3.Leave to appeal on ground 1 is granted.
4.The appeal is allowed.
5.Other than the order for compensation in the amount of $1,435 to be paid to Abdur Razzaque, the sentence imposed on 9 August 2019 in PE 34825/2019 be set aside.
6.The appellant be resentenced to a fine of $1,000.
These are my reasons for making the orders.
Jacek Antonio Kotnowski seeks an extension of time to commence an appeal and leave to appeal a sentence imposed on him on 9 August 2019.
The appeal was commenced on 19 September 2019 (13 days out of time). The application for an extension of time is not opposed.[1] The delay is relatively short and has been adequately explained.[2]
[1] Respondent's submissions [3].
[2] Affidavit of Natalie Sinton sworn 19 September 2019.

Background

Mr Kotnowski was charged with one count that, on 31 December 2018, he gained a benefit by fraud by deceit, namely $1,435, contrary to s 409(1)(c) of the Criminal Code (WA).
The facts of the offence were admitted and are as follows.[3] On 21 December 2018, Mr Kotnowski posted an advertisement on Gumtree for the sale of…

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 Kotnowski v Richardson

Details

AGLC: Kotnowski v Richardson [2019] WASC 369
Case: [2019] WASC 369
Decision Date: 11 OCTOBER 2019

CaseChat Overview and Summary

Kotnowski v Richardson is a case heard by the Court of Appeal in Victoria, Australia. The appellant, Kotnowski, was convicted of obtaining a sum of $1,435 by fraud through deceitful means. The primary issue before the court was whether the sentence imposed, which was 7 months' imprisonment, was manifestly excessive considering the nature and circumstances of the offence. The appellant argued that the sentence was too harsh, particularly given the relatively small amount of money involved and the absence of a prior criminal record.

The court considered several factors in determining the appropriate sentence. These included the seriousness of the offence, the appellant's culpability, and the need for deterrence and denunciation. The court also weighed the appellant's personal circumstances, including his lack of a criminal history and his otherwise good character. The court acknowledged the appellant's remorse and the relatively small amount of money obtained through fraud, but also noted the need to uphold the law and maintain public confidence in the criminal justice system.

After careful consideration, the Court of Appeal determined that the sentence was not manifestly excessive. The court held that while the amount obtained by fraud was relatively small, the nature of the offence and the appellant's deceit warranted a custodial sentence. The court emphasised the importance of deterrence and the need to send a clear message that fraudulent behaviour would not be tolerated. Ultimately, the appeal was dismissed, and the original sentence was upheld.

Orders