Kowski v The King - [2024] VSCA 3

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0236

CASEY KOWSKI	Applicant
v
THE KING	Respondent

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JUDGES:	NIALL and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 January 2024
DATE OF JUDGMENT:	12 February 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 3
JUDGMENT APPEALED FROM:	[2023] VCC 1813 (Judge Gwynn)

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CRIMINAL LAW – Leave to appeal – Sentence – Koori Court – Objective gravity of offending – Whether judge overstated objective gravity of offending – Absence of victim impact statement did not preclude judge from drawing inferences about impact of offence on victims – Bare facts support finding that victims would have been in fear – Victim impact statement not misused for common assault charge – Gravity of offending not mischaracterised – Total effective sentence and individual components not manifestly excessive.

CRIMINAL LAW – Leave to appeal – Sentence – Rehabilitation – Whether judge erred in fixing non-parole period rather than imposing combined sentence – Where previous periods of parole had not prevented further offending – No error in finding prospects of rehabilitation guarded – Well open to conclude offending too serious for combination sentence – Judge not permitted to take into account whether applicant would get parole.

CRIMINAL LAW – Leave to appeal – Sentence – Psychological or psychiatric impairment – Whether judge failed to take into account considerations in R v Verdins (2007) 16 VR 269 (‘Verdins’) – Not the role of the judge to sift through material and identify whether Verdins factors engaged – Not submitted bipolar disorder contributed to offending – Psychiatrist did not accept applicant suffering from bipolar disorder – Leave to appeal refused.

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Counsel
Applicant:		Mr C Mylonas
Respondent:		Ms B Goding
Solicitors
Applicant:	RLG Legal & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
BOYCE JA:

The applicant pleaded guilty in the County Court to one charge of attempted armed robbery and one charge of common assault. The plea took place in the Koori Court at Mildura.
The applicant was sentenced to a term of imprisonment of 3 years with a non-parole period of 20 months. That sentence was composed as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Attempted armed robbery	20 years	2 years and 6 months	Base
2	Common assault	5 years	8 months	6 months
Total Effective Sentence:		3 years
Non-Parole Period:		20 months
Pre-sentence Detention Declared:		501 days
Section 6AAA Statement:		Total Effective Sentence 4 years and 8 months Non Parole-Period 3 years and 2 months
Other Relevant Orders: Nil

He seeks leave to appeal his sentence on seven grounds. They are as follows:
1.The learned judge erred in her characterization of the objective gravity of the attempted armed robbery.
2.The learned judge erred in her assessment of the objective gravity of the common assault charge.
3. The learned judge erred in finding charge 2 was a wholly separate incident and in doing so failed to give effect to the presumption of concurrency.
4. The learned…

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 Kowski v The King

Details

AGLC: Kowski v The King [2024] VSCA 3
Case: [2024] VSCA 3
Decision Date: 12 February 2024

CaseChat Overview and Summary

In the matter of Kowski v The King, the applicant appealed against the sentence imposed by the County Court, arguing that the sentence was manifestly excessive and that the trial judge failed to properly consider his prospects of rehabilitation and psychological or psychiatric impairment. The applicant was convicted of multiple charges including assault occasioning bodily harm, unlawful imprisonment, and common assault. The trial judge imposed a total effective sentence of 5 years and 9 months imprisonment, with a non-parole period of 3 years and 2 months.

The primary legal issues before the court were whether the trial judge overstated the objective gravity of the offending, erred in fixing a non-parole period rather than imposing a combined sentence, and failed to take into account the applicant's psychological or psychiatric impairment in accordance with R v Verdins. The court found that the bare facts supported the conclusion that the victims would have been in fear, and that the absence of a victim impact statement did not preclude the judge from drawing inferences about the impact of the offence on the victims. The court also found that the total effective sentence and individual components were not manifestly excessive, and that the judge was not permitted to take into account whether the applicant would get parole when fixing the non-parole period.

The court further found that it was not the role of the judge to sift through the material and identify whether the Verdins factors engaged, as it was not submitted that the applicant's bipolar disorder contributed to the offending. The psychiatrist did not accept that the applicant was suffering from bipolar disorder. The court held that the trial judge did not err in finding the applicant's prospects of rehabilitation guarded, and that it was well open to conclude that the offending was too serious for a combination sentence. Leave to appeal was refused.

The court did not make any orders.

Orders