Krzykalski Aka Palmer v The King - [2023] NSWCCA 32

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Krzykalski Aka Palmer v R [2023] NSWCCA 32
Hearing dates: 12 October 2022
Date of orders: 1 March 2023
Decision date: 01 March 2023
Before: Basten AJA at [1]
Davies at [2]
McNaughton J at [80]
Decision:
1. Leave to appeal granted.
2. Dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against sentence –robbery while armed with a dangerous weapon – using offensive weapon to intimidate – offences committed while applicant subject to parole for armed robbery offence committed in Queensland – pleas of guilty – where applicant would be transferred to Queensland when released to parole in NSW – where applicant sentenced to aggregate term of 8 years’ imprisonment – whether aggregate sentence imposed was manifestly excessive – totality with Queensland sentence – where no certainty about time to be spent in custody in Queensland after NSW sentence served - early life disadvantage – sexual abuse suffered in State care – drug habit attributable to sexual abuse – PTSD – prospects of rehabilitation - remorse for both offences – whether subjective case weighed heavily against indicative sentences and aggregate sentence – whether extra-curial punishment by corrective service officer threatening to shoot applicant whilst applicant in hospital – sentence not manifestly excessive - appeal dismissed

Legislation Cited:
Corrective Services Act 2006 (Qld) ss 205, 206, 211
Crimes Act 1900 (NSW) ss 33B, 97
Firearms Act 1996 (NSW) s 62
Parole Orders (Transfer) Act 1983 (NSW)
Prisoners (Interstate Transfer) Act 1982 (NSW)

Cases Cited:
Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Quinn v R [2018] NSWCCA 297
R v Allpass (1993) 72 A Crim R 561
R v Callaghan [2006] NSWCCA 58; (2006) 160 A Crim R 145
Regina v Daetz; Regina v Wilson [2003] NSWCCA 216; (2003) 139 A Crim R 398
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Texts Cited:
Nil

Category: Principal judgment
Parties: Andrew John Krzykalski Aka Andrew Palmer (Applicant)
The King (Respondent)
Representation:
Counsel:
P Coady (Applicant)
S Traynor (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions NSW (Respondent)

File Number(s): 2018/149126
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

4 June 2021

Before:

Colefax SC DCJ

File Number(s):

2018/149126

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant pleaded guilty in the Local Court to two offences: robbery while armed with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900 (NSW), and using an offensive weapon to intimidate contrary to s 33B(1)(a) of the Crimes Act. In addition to the two principal offences, the applicant asked the sentencing judge to take into account one matter on a Form 1 in relation to the first charge, being an offence of possessing a shortened firearm without…

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.

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Details

Case: [2023] NSWCCA 32
Decision Date: 01 March 2023

CaseChat Overview and Summary

The case of Krzykalski Aka Palmer v The King involves an appeal against a sentence imposed on the applicant for committing robberies while armed with a dangerous weapon, using an offensive weapon to intimidate. The applicant had previously been subject to parole for an armed robbery offence committed in Queensland. The applicant entered pleas of guilty to the offences. The court sentenced the applicant to an aggregate term of eight years' imprisonment, with the expectation that upon release, the applicant would be transferred to Queensland to serve the remainder of the parole term. The primary legal issues the court had to address were whether the aggregate sentence was manifestly excessive and if the subjective circumstances of the applicant's case warranted a different outcome.

The court assessed the sentence by considering the totality of the applicant's circumstances, including early life disadvantages, experiences in state care, a drug habit attributable to sexual abuse, and the presence of PTSD. The court acknowledged the applicant's remorse and prospects of rehabilitation but ultimately determined that these factors were already considered within the sentencing framework. The court also considered an extra-curial threat made by a corrective service officer towards the applicant, which did not influence the sentence. The court found that the aggregate sentence was not manifestly excessive and dismissed the appeal, upholding the original sentence.

In summary, the court dismissed the appeal and upheld the aggregate sentence of eight years' imprisonment, finding that despite the applicant's significant personal challenges and remorse, the sentence was appropriate and not manifestly excessive. The court's decision was based on a comprehensive assessment of the applicant's circumstances and the need for the sentence to reflect the seriousness of the offences committed.

Orders