Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference –Sentence manifestly excessive or inadequate – Particular offences – Offences against the person – Murder – Particularly vicious and intentional killing – Whether sentence of 22 years' imprisonment with a non-parole period of 13.5 years manifestly excessive – Head sentence not manifestly excessive – Exercise of sentencing discretion with regard to parole – Non-parole period of 13.5 years not manifestly excessive

Adams v The Queen [1998] TASSC 41; Hill v Tasmania [2015] TASCCA 6; Butt v Tasmania [2018] TASCCA 3; Neill-Fraser v Tasmania [2012] TASCCA 2; Taylor v The State of Western Australia [2015] WASCA 72, referred to.
Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  K Baumeler, A McKenzie
             Respondent:  D G Coates SC
Solicitors:
             Appellant:  McLean, McKenzie & Topfer
             Respondent:  Director of Public Prosecutions

Judgment Number: [2019] TASCCA
Number of paragraphs: 25

Serial No 6/2019
File No CCA 2569/2018

RUSSELL JOHN NOWOCZYNSKI v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

ESTCOURT J
BRETT J
MARTIN AJ

29 May 2019

Orders of the Court:

Appeal dismissed.

Serial No 6/2019
File No CCA 2569/2018

RUSSELL JOHN NOWOCZYNSKI v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

ESTCOURT J
29 May 2019

The appeal

On the night of 11 June 2016 the appellant, Russell John Nowoczynski, murdered a man named Donald William Crow by beating and kicking him to death on a lonely country road between Interlaken and Oatlands. He was sentenced by Blow CJ to 22 years' imprisonment, with a parole ineligibility period of 13 years and 6 months. This is an appeal from that sentence. The appellant contended that the sentence was manifestly excessive on the basis that the non-parole period of 61% rendered it so.
The Court dismissed the appeal after the hearing on 29 May 2019. These are my reasons for so doing.
The task of this Court on an appeal of this nature needs always to be borne steadily in mind. It has been explained many times in this Court and in others. A succinct restatement of the relevant principles in relation to manifest excess may be found in Hall v Tasmania [2015] TASCCA 6 where Pearce J said at [51]–[52]:
"51 To succeed in an appeal on the ground that a sentence is manifestly excessive the appellant must show that the sentencing discretion must have miscarried and the sentence is definitely outside the appropriate range of sentences for the crime: Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295, per McHugh J at 306. It must…

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 Nowoczynski v Tasmania

Details

AGLC: Nowoczynski v Tasmania [2019] TASCCA 6
Case: [2019] TASCCA 6
Decision Date: 29 May 2019

CaseChat Overview and Summary

Nowoczynski appealed against a sentence imposed by the Supreme Court of Tasmania for murder. The appellant, Nowoczynski, was sentenced to 22 years' imprisonment with a non-parole period of 13.5 years. The appeal concerned whether this sentence was manifestly excessive.

The central legal issue before the Full Court of the Supreme Court of Tasmania was whether the head sentence of 22 years' imprisonment and the non-parole period of 13.5 years were demonstrably excessive, warranting appellate intervention.

The Court considered the nature of the offence, describing it as a particularly vicious and intentional killing. In applying sentencing principles, the Court found that the sentencing judge had properly exercised their discretion. The head sentence was not found to be manifestly excessive, nor was the non-parole period of 13.5 years.

Consequently, the appeal against sentence was dismissed.

Orders