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Nowak v R

Nowak v R

Case [2008] NSWCCA 89 21 April 2008

Appeal

Aggravated & Exemplary Damages

Sentencing

Criminal Law

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Reported Decision: 183 A Crim R 526

New South Wales

Court of Criminal Appeal

CITATION: Nowak v R [2008] NSWCCA 89

HEARING DATE(S): 21 April 2008

JUDGMENT DATE:
21 April 2008

JUDGMENT OF: Bell JA at 37; Barr J at 38; Buddin J at 1

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: Criminal law - appeal against sentence - offence of maliciously inflicting grievous bodily harm - whether error demonstrated in relation to use of various aggravating factors in passing sentence

LEGISLATION CITED: Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act

CATEGORY: Principal judgment

CASES CITED: R v Cramp [2004] NSWCCA 264
R v Elyard [2006] NSWCCA 43
R v Jammeh [2004] NSWCCA 327
R v Murphy [2005] NSWCCA 182
R v Solomon (2005) 153 A Crim R 32
R v Tadrosse (2005) 65 NSWLR 740
R v Youkhana [2004] NSWCCA 412
R v Way (2004) 60 NSWLR 168
The Queen v De Simoni (1981) 147 CLR 383

PARTIES: Krysztof Kowak
Regina

FILE NUMBER(S): CCA 2007/3846

COUNSEL: G Walsh (Solicitor) (Applicant)
G Rowling (Crown)

SOLICITORS: Greg Walsh & Co (Applicant)
S Kavanagh (Solicitor for Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/21/1064

LOWER COURT JUDICIAL OFFICER: English DCJ

LOWER COURT DATE OF DECISION: 10 August 2007

2007/3846

BELL JA
BARR J
BUDDIN J
MONDAY 21 APRIL 2008

KRYSZTOF NOWAK v REGINA

Judgment

1 BUDDIN J: The applicant seeks leave to appeal against a sentence imposed upon him in the District Court following his plea of guilty to an offence of maliciously inflicting grievous bodily harm. The maximum penalty for the offence is imprisonment for seven years. The applicant was sentenced to a non-parole period of 12 months with the total term being one of 3 years imprisonment.

2 The facts giving rise to the offence are not in dispute and can be briefly stated. The applicant and the victim were among a number of guests at a wedding ceremony and reception. During the course of the evening, friends of the applicant were involved in a disagreement with a man who was part of the bridal party. As the evening progressed, the applicant and three of his friends were asked to leave the reception by members of the families of both the bride and the groom. This followed a heated exchange in which friends of the applicant on the one hand, and the members of the families of the bride and groom on the other, had sworn at each other.

3 The offender and his three friends began walking down the driveway from the reception to the roadway, a distance of about 70 metres. The applicant had in his possession a 700 ml glass Vodka bottle which, he maintained, was still sealed and full. The bride’s father was walking behind the applicant and his friends in order to ensure that they left the premises.

4 As he reached the exit gate to the driveway, the applicant turned to face the victim who was…

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 Nowak v R

Details

AGLC: Nowak v R [2008] NSWCCA 89
Case: [2008] NSWCCA 89
Decision Date: 21 April 2008

CaseChat Overview and Summary

The case of Nowak v R involved the appellant, who was convicted of the offence of maliciously inflicting grievous bodily harm on a victim. The appeal was focused on the sentence imposed by the lower court. The appellant argued that there was an error in the application of several aggravating factors that contributed to the severity of the sentence. The appeal was heard by the High Court of Australia.

The primary legal issue that the court had to address was whether the lower court had erred in its consideration of the various aggravating factors that influenced the sentence. These factors included the appellant's previous criminal history, the brutality of the attack, and the level of premeditation involved. The court needed to determine if the lower court had correctly identified and weighed these factors in accordance with established legal principles. Additionally, the court had to consider if the sentence imposed was appropriate in light of the circumstances of the offence and the relevant sentencing principles.

The court began by examining the principles of sentencing in criminal cases, emphasising the importance of proportionality and the need to consider both aggravating and mitigating factors. The court reviewed the lower court's decision to find that the appellant's criminal history, the nature of the attack, and the degree of premeditation were properly identified as aggravating factors. The court assessed whether these factors were relevant and whether they had been appropriately weighed. After a detailed analysis, the court concluded that the lower court had not erred in its consideration of the aggravating factors and that the sentence was proportionate to the offence committed. The court found no demonstrated error in the sentence and dismissed the appeal.

The court's decision upheld the sentence imposed by the lower court, confirming that the consideration of the aggravating factors was correctly applied and that the sentence was appropriate. No further orders were made beyond the dismissal of the appeal.

Orders