Krencej v The Queen

Case [1999] WASCA 20

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   COURT OF CRIMINAL APPEAL

CITATION:   KRENCEJ -v- R [1999] WASCA 20

CORAM:   KENNEDY J

IPP J
WALLWORK J

HEARD:   20 APRIL 1999

DELIVERED          :   19 MAY 1999

FILE NO/S:   CCA 192 of 1998

BETWEEN:   CURTIS JOHN KRENCEJ

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Stealing - Unlawful detention - Aggravated sexual penetration - Two counts of aggravated robbery - Two counts of attempting to pervert the course of justice - Prisoner 19 years of age at time of offences - Sentences imposed on basis of prosecution's assertions, some of which were denied by the prisoner and which were not the subject of a trial - Sentence of 16 years and 8 months set aside - Sentence of 13 years and 8 months substituted

Legislation:

Nil

Result:

Appeal allowed

Representation:

Counsel:

Applicant:     Mr B G Illari

Respondent:     Mr R E Cock QC & Ms A L Forrester

Solicitors:

Applicant:     Bruno Illari

Respondent:     State Director of Public Prosecutions

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

R v Hill (1982) 6 A Crim R 202

Case(s) also cited:

Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621

Bensegger v R [1979] WAR 65

Britten v The Queen, unreported; CCA SC of WA; Library No 940079; 21 February 1994

House v The King (1936) 55 CLR 499

Parfitt v The Queen, unreported; CCA SCt of WA; Library No 960140; 21 March 1996

R v Langridge (1996) 87 A Crim R 1

R v Mitchell (1994) 72 A Crim R 200

R v Weng Keong Chan (1989) 38 A Crim R 337

Yanko v The Queen, unreported; CCA SCt of WA; Library No 960030; 23 January 1996

  1. JUDGMENT OF THE COURT:  The applicant was presented in the Supreme Court on 2 November 1998 on an indictment containing eight counts.  He pleaded guilty to seven of those counts and a nolle prosequi was subsequently entered in relation to the eighth count.  The counts to which the applicant pleaded guilty were as follows:

    1.On 8 March 1998 at Beldon the applicant, being in the place of Astrid Bethell without her consent, committed the offence of stealing.

    2.On the same date and at the same place the applicant unlawfully detained Florecita Barsana Acacio.

    3.On the same date and at the same place the applicant sexually penetrated Florecita Barsana Acacio without her consent, at the time being armed with a dangerous weapon, namely a knife, and at the time doing bodily harm to Florecita Barsana Acacio.

    4.On the same date and at the same place the applicant stole from Florecita Barsana Acacio with actual violence a sum of money the property of Florecita Barsana Acacio and that at the time he was armed with a dangerous weapon, namely a knife.

    5.On the same date and at the same place the applicant stole from Florecita Barsana Acacio with actual violence a motor vehicle the property of Florecita Barsana Acacio and…

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AGLC
Krencej v The Queen [1999] WASCA 20
Case
[1999] WASCA 20
Decision Date

CaseChat Overview and Summary

The Supreme Court heard a case involving a 19-year-old applicant who was convicted on multiple counts including stealing, unlawful detention, aggravated sexual penetration, aggravated robbery, and attempting to pervert the course of justice. The applicant was sentenced to a total of 16 years and 8 months imprisonment, which was subsequently challenged in court. The applicant contested the basis on which the sentence was imposed, arguing that it relied on certain assertions made by the prosecution that were neither admitted by the applicant nor subjected to a trial. The central issue before the court was whether the sentence was appropriate given the circumstances and the applicant's age at the time of the offences.

The court examined the nature and severity of the offences, noting the serious nature of the crimes including the use of a weapon, violence, and the impact on the victims. However, the court also took into account the applicant's age at the time of the offences, which was a mitigating factor. The court reviewed the evidence and the submissions made by both parties and concluded that the original sentence was excessive. The court found that the sentence did not adequately balance the seriousness of the crimes with the mitigating factors, including the applicant's age and the absence of a trial on some of the prosecution's assertions.

Upon reconsideration, the court substituted the original sentence with a new sentence of 13 years and 8 months imprisonment. This decision reflects a more balanced approach to sentencing, taking into account both the gravity of the crimes and the mitigating circumstances. The new sentence aims to provide justice for the victims while also considering the applicant's age and the procedural shortcomings in the original sentencing process.

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

IPP J
JUDGMENT OF THE COURT: The applicant was presented in the Supreme Court on 2 November 1998 on an indictment containing eight counts. He pleaded guilty to seven of those counts and a nolle prosequi was subsequently entered in relation to the eighth count. The counts to which the applicant pleaded guilty were as follows:1.On 8 March 1998 at Beldon the applicant, being in the place of Astrid Bethell without her consent, committed the offence of stealing.2.On the same date and at the same place the applicant unlawfully detained Florecita Barsana Acacio.3.On the same date and at the same place the applicant sexually penetrated Florecita Barsana Acacio without her consent, at the time being armed with a dangerous weapon, namely a knife, and at the time doing bodily harm to Florecita Barsana Acacio.4.On the same date and at the same place the applicant stole from Florecita Barsana Acacio with actual violence a sum of money the property of Florecita Barsana Acacio and that at the time he was armed with a dangerous weapon, namely a knife.5.On the same date and at the same place the applicant stole from Florecita Barsana Acacio with actual violence a motor vehicle the property of Florecita Barsana Acacio and at the time he was armed with a dangerous weapon, namely a knife.6.On 8 March 1998 at Scarborough the applicant by falsely stating to Brett James Brandhoff that he was in a VB Commodore attempted to pervert the course of justice upon his prosecution for offences of aggravated sexual assault.7.On the same date and at the same place referred to in the previous count the applicant by falsely stating to Brett James Brandhoff that Darren Walters was the driver of a Holden Apollo vehicle attempted to pervert the course of justice upon his prosecution for offences of aggravated sexual assault. Pursuant to s 32 of the Sentencing Act 1995, the applicant was also dealt with on five charges pending in the Court of Petty Sessions, they being for possession of cannabis, reckless driving, driving without a motor driver's licence, failing to stop after an accident and failing to report an accident. The applicant pleaded guilty to each of those charges. The facts provided to the court by counsel for the prosecution were that, at approximately 5.30am on Sunday, 8 March 1998, the applicant went onto the first complainant's property situated in Marion Court in Beldon. He removed a flyscreen from the kitchen window at the rear of the house, reached his hand through the open sliding window and removed a purse from the breakfast bar. At the time, the complainant was asleep in her bedroom. The applicant did not have permission to enter the premises or to remove any property. The complainant's purse, valued at some $50, was recovered outside the premises, $52 in cash having been removed from it. The money was not recovered. When interviewed by detectives on 17 March regarding this offence, the applicant indicated he did not wish to comment on it. Those were the facts in respect of the count numbered 1 above.

Ratio Decidendi

Legal Principle Established

Established by: IPP J

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