Kus v Ronowska

[2013] NSWCA 387

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Kus v Ronowska [2013] NSWCA 387

Hearing dates:

13 November 2013

Decision date:

13 November 2013

Before:

Bathurst CJ at [1]; Barrett JA at [6]; Ward JA at [7]

Decision:

1. Grant leave to the appellant to withdraw his appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - appellant convicted of contempt - application to withdraw appeal granted - commencement of term of imprisonment.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999, s 47
Criminal Appeal Act 1912, s14A(4)

Cases Cited:

R v Springer [2009] NSWCCA 144

Category:

Principal judgment

Parties:

Peter Severin Kus (Appellant)
Krystyna Urszula Ronowska (Respondent)
Attorney General of NSW (amicus curiae)

Representation:

Counsel:
S Fraser (Appellant)
D M Roberts (Respondent)
N Adams SC (amicus curiae)
Solicitors:
O'Brien Solicitors (Appellant)
I V Knight, Crown Solicitor (amicus curiae)

File Number(s):

2013/230082

Publication restriction:

No

 Decision under appeal 

Jurisdiction:

9111

Citation:

[2012] NSWSC 817

Date of Decision:

2012-07-27 00:00:00

Before:

Pembroke J

File Number(s):

2011/257705

Judgment

(Ex tempore - revised 18 November 2013)

1. BATHURST CJ: The Court grants leave to the appellant to withdraw his appeal. The consequence of that is that orders made by Pembroke J on 27 July 2012 remain in force, the effect of those orders is that the term of imprisonment imposed on the appellant of eighteen months will run from that date and the appellant will be entitled to be released on 27 January 2014; and this is so even though he was not apprehended and imprisoned until 27 January 2013.

1. The result in one view may be unfortunate because the intention of the primary judge was quite plainly to impose a term of imprisonment running for a period of eighteen months from the date that the appellant was detained. It is particularly unfortunate in circumstances where, whilst not expressing any final view as to what the outcome of the appeal would have been had it been maintained, prima facie the order of the primary judge seems eminently justified in circumstances where the appellant had not sought to purge his contempt and does not seem to have shown the slightest remorse for what he did, which was not only contemptuous but on the face of it at least totally dishonest.

1. However s 47(1) of the Crimes (Sentencing Procedure) Act 1999 provides expressly that subject to any order to the contrary, a term of imprisonment runs from the date on which it was imposed. As the primary judge did not take that into account in the orders made by his Honour, it not having been referred to him, in the circumstances the section must take effect according to its terms.

1. I will add to what I have said that had this matter been dealt with under the Criminal Appeal Act 1912, then the provisions of s14A(4) of that Act would enable the difficulty which arises to have been accommodated: see R v Springer [2009] NSWCCA 144 at [50] and following. It would be desirable that in cases where appeals of this nature are brought to this Court rather than the Court of Criminal Appeal, that there be a similar provision in the relevant legislation.

1. Accordingly leave is granted to withdraw the appeal, I thank counsel and in particular the Crown Advocate for their helpful submissions.

1. BARRETT JA: I agree.

1. WARD JA: I agree with Bathurst CJ.

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Decision last updated: 20 November 2013