R v Bielecki

[2024] NSWDC 351

District Court

New South Wales

Medium Neutral Citation:

R v Bielecki [2024] NSWDC 351

Hearing dates:

9 August 2024

Decision date:

14 August 2024

Jurisdiction:

Criminal

Before:

NOMAN SC DCJ

Decision:

Aggregate sentence of 2 years and 11 months imprisonment imposed, to be served by way of intensive correction order, with 600 hours community service work.

Catchwords:

SENTENCING — Penalties — Intensive correction orders — indecent assault — detain for advantage

Legislation Cited:

ss 23, 61L, 86(1)(b) Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

R v De Simoni (1981) 147 CLR 383

R v Nahle [2007] NSWCCA 40

Category:

Sentence

Parties:

Rex;
Martin Bielecki

Representation:

Counsel:
Defence: P Godkin

Solicitors:
Crown: S Richards

File Number(s):

2004/54543

Publication restriction:

Statutory non-publication order in relation to the victim and anything that may identify them

JUDGMENT

1. In 2004 the offender, Martin Bielecki, was in an intimate relationship with the victim. I do not name the victim to protect her identity. The relationship had been ongoing for about a year. In 2004 they were both aged 21. The evidence supports there were pre-existing issues in the relationship. I disregard details outlined in the Victim Impact Statement. Those details extend well beyond the circumstances of the offending for sentence and the content of the agreed facts. The hearsay representations of the offender, to the extent the victim is blamed, are also not used to inform the facts for sentence.

2. On the evening of 24 February 2004, the victim collected the offender from a club. From the moment they left the club the victim was scared. The victim drove the offender to his home. The victim locked the car doors. The offender pushed down the glass on the window to talk and broke the glass. This enabled him to unlock the door and he took hold of the victim’s bag from her lap. The victim was scared, and she agreed to go with the offender to his apartment. Once she entered, she sat and commenced to cry. The offender searched her bag and the contents. The offender commenced to accuse the victim of infidelity. He was abusive and confronting in the words used. The offender indicated he could get physical, and he could ‘bash’ the victim. The victim continued to cry.

3. The offender placed his hands between the victim’s knees, he reached up under her skirt and tried to grab her underwear. The victim was protesting by screaming for the offender to stop. The offender picked her up as she was crying, screaming and kicking. He removed her from the lounge room and took her in to his bedroom. He threw her on the bed. On each occasion she attempted to sit up she was pushed down.

4. This is the lead up to the offending. This informs the context in which each offence occurred. I do not accept that taking this context into account offends the De Simoni principle.

5. This background informs the distress the victim was already experiencing.

6. The victim and the offender were in a domestic relationship and that fact informs the seriousness of what occurred during each offence.

7. There is no evidence any offence was planned. Each present as responsive to an escalating situation, being a situation controlled by the offender.

8. I appreciate the offender’s age at the time of offending and that he was at an age where immaturity informs offending. I accept the submission advanced on his behalf that the seriousness of the offences is informed by his inability at the time to comprehend the consequences of his actions.

9. The offender held the victim down on his bed and forced her legs open. He put his head between her legs and pushed his nose on her genitalia. He said “It stinks like semen. Where have you been you little slut”. This conduct is the first offence of indecent assault for sentence.

10. Whilst still holding her down on his bed he pushed his fingers against the outside of her genitalia. He kept his finger there for about 2 to 3 seconds. The force of holding her legs apart caused bruising. The offender said “It’s wet. You have been somewhere else before you saw me. That’s why you don’t want to do it with me today. You dress cheap, you look cheap, you are cheap”. This is the second indecent assault.

11. The offender released the victim. She asked to put her underwear on. The agreed facts do not expressly state when the victim’s underpants were removed. They were evidently not worn immediately after the second indecent assault. The facts cannot be read any other way. Similarly, the two indecent assaults occur without any break. I raised this factual lacuna with both parties. The Crown indicated a finding should be made they were removed prior to the assaults. Counsel for the offender indicated this finding was not open. This reflects as an example of poor drafting of agreed facts. Whether the touching supporting each count occurred directly to skin informs the seriousness of the offending. It is a matter of aggravation, and the Crown would need to establish it beyond reasonable doubt. I infer beyond reasonable doubt the underwear was removed by the offender prior to the first indecent assault. Although I reach this determination, and consider it elevates the seriousness of each offence, when the overall circumstances are considered, it is one relevant factor, and its significance is modest. The type of assault, in all the other circumstances, is serious whether through underwear or directly to skin.

12. In assessing the seriousness of each of these offences I do not overlook each occurred in a domestic relationship. I do not find it an aggravating feature that it occurred in the offender’s home. There is nothing about the relationship that supports the victim felt safe in this environment or had an expectation to feel safe there. An offence of indecent assault captures a wide range of touching. Both acts of touching were to the genitalia and both directly to skin. There is no suggestion that each touching was other than brief. Both were accompanied by demeaning words. The victim was restrained by being held down during each act. She was already exhibiting signs of distress and fear. Each offence is relatively serious.

13. Having committed humiliating acts, the offender then committed the detaining offence. The offender permitted the victim to replace her underwear and to return to the lounge room. As she sat on a chair the offender picked up a chair and held it over his head before he swung it towards the victim as if to hit her. He went to the kitchen. The victim took hold of her handbag and went towards the front door. The offender grabbed her shoulder and told her not to leave. He pushed her back on to the lounge. On each occasion she tried to stand the offender pushed her away from the front door. The victim asked him not to push her. The offender said, “pushing is not all I’m gonna do”. There was further argument.

14. Whilst the victim was still detained, the offender pushed her, told her not to make a noise or he would ‘bash’ her and he raised his fist and swung it towards her head. This conduct is listed as an item on the form 1. I do not take this portion of the incident into account as it supports a discrete offence. I do take into account it occurred within an ongoing detention offence. It was limited contact and a limited threat of further violence.

15. The victim asked to use the toilet. Afterwards they went to the bedroom, where the offender pushed her on to the bed and hugged her whilst pulling her hair. They went back to the loungeroom. The offender ordered pizza for himself. He apologised to the victim. He asked if she wanted to stay or go. The victim indicated she wanted to leave. The offender told her he had no control outside, so she was required to stay. The victim indicated she did not want to stay, and she was scared. She was trembling because of the offender. She set an alarm on her phone to try to leave after the offender fell asleep. The offender witnessed this and asked if she planned on ‘doing a runner’. The offender kissed and hugged the victim on the bed. There was a discussion about sex in which the victim indicated she did not want to have sex. After some discussion the victim persuaded the offender to take her to a convenience store for food. The offender agreed but required her to leave her bag and some clothing in the apartment. Once at the convenience store the victim called 000. The offender tried to take her phone. The police arrived. This concluded the detention.

16. There is no precise timing, but it was not brief. There were various interactions in different locations. It occurred within the apartment and outside. The victim was threatened with assault by a raised chair and words threatening she would be bashed. She was assaulted by having her hair pulled. The detention did not cease due to any decision of the offender. She evidenced fear and told him of her fear. He did not desist. For part of the detention, she was held within an apartment, away from the hope of assistance from others, and not able to extricate herself.

17. This act was perpetrated by her partner. Submissions were advanced on behalf of the offender as to what was absent from the offence such as the use of restraints. I accept a more serious offence may be envisaged within the offence provision. It was submitted on behalf of the offender that the psychological advantage that was sought was to ‘talk’ to the victim. That submission is inconsistent with the agreed facts and the conduct that was occurring.

18. I do not consider the victim found the comfort of the lounge to alleviate her distress. She was not merely detained by words. She had been in fear from prior to entering the unit, she had been indecently assaulted and assaulted. I shall assess the seriousness of the offence informed by the circumstances of the offence. It was still a serious offence.

19. As a consequence of this offending the victim suffered considerable trauma. She has outlined the impact she perceives was occasioned both from her relationship with the offender and from the offending. I acknowledge the harm perceived but intend to ensure that I retain a delineation between that attributable to the offending and that attributed to other aspects. This is a difficult but achievable exercise. I accept her account that she has never forgotten the offending and it has remained a constant memory. She was fearful during the offending and that fear remained, and informed aspects of her life choices and experiences. The Crown does not advance the harm to fall within an aggravating factor. It is real and tangible harm that has not abated. The victim wrote eloquently and in detail of the harm. The opportunity to confront an offender with the consequences of the offending is important. The court benefits from being informed of this harm.

20. The offender was arrested on 25 February 2004. He failed to appear on 17 June 2004 and a warrant was issued. He absconded and fled overseas. He remained overseas until 2016. During this time, he met his now wife and started a family.

21. He was arrested in 2022, 18 years after his offending. This arrest reinforced the trauma experienced by the victim. It is hoped the finalisation of the court process brings some closure.

22. The circumstances of his detection after 18 years must be explored as it is used on his behalf to support a submission it is a form of assistance warranting an “Ellis discount”. Informed by the offender’s account as documented in the psychological report, and to a limited extent supported by the body worn recording, the offender was suffering an acute psychotic episode likely caused by excessive caffeine. In this state he presented at the airport and spoke to AFP officers. He wanted to report conduct of his neighbours and provided an apparently delusional history. He told the author of the report that he presented to report his neighbour. He did not advance he presented with any intention of surrendering himself. In amongst this reporting and seeking assistance he nominated more than once that there may be a warrant in existence. This presented as an ancillary volunteering of information. I do not accept that he intended to acknowledge the crime, a view reinforced by the very belated pleas. I do not accept he intended to inculpate himself. It does not bespeak of volunteering previously unknown conduct. It brought him to the attention of police, not with forethought but due to an acute mental health issue. It does not speak of remorse or a considered position to assist authorities. I have reflected upon s.23 Crimes (Sentencing Procedure) Act 1999 (NSW). I do not consider any benefit should flow to the offender due to the factors provided therein.

23. I accept it did bring him to the attention of police 18 years after he absconded. In R v Nahle [2007] NSWCCA 40, the CCA considered an offender voluntarily surrendering after absconding 6 years earlier. Therein the Court considered and remarked upon:

1. the elevated impact of the delay upon the victim;

2. the offender should not be entitled to the full benefit of advantages gained by absconding, such as demonstrated rehabilitation; and

3. the conflicting public policy considerations that arise and the justice system should not permit manipulation by an offender absconding.

24. The offender is entitled to a 5 % discount to his sentence in recognition of the timing of the pleas. This conduct does not warrant any further discrete reduction.

25. The offender is to be sentenced for three offences:

Counts 1 and 2: Indecent assault contrary to s.61L Crimes Act 1900 (NSW), with a maximum penalty of 5 years imprisonment; and

Count 3: Detain for advantage contrary to s.86[1][b] Crimes Act 1900 (NSW), with a maximum penalty of 14 years imprisonment.

26. I am also asked to take into account when I sentence on count 3, a further offence of assault, contrary to s.61 Crimes Act, listed on a form 1. I consider it appropriate to take this matter into account and will do so in accordance with the guideline judgment. Given the nature of the assault it will result in only a most modest adjustment to the otherwise determined sentence.

27. As a consequence of absconding, the offender comes before the Court, not as a 21-year-old but as a 41-year-old.

28. He is a person of prior good character. Other than this offending and his decision to abscond, his background is positive and pro-social. He has maintained either paid employment or parental responsibilities. He has benefited from a supportive partner and the opportunity to spend time with his 4 young children. His conduct demonstrates he is unlikely to reoffend and has rehabilitated. In reaching this conclusion I am assisted by the Sentencing Assessment Report and the psychological report. Personal deterrence is highly limited.

29. Contrary to the victim who advanced she was still able to recall the details of the offending, the offender informed the author of the Sentencing Assessment Report that he could not recall most of the details given the passage of time. He recalled and advanced the relationship had difficulties. He did express regret for his actions, suggesting this regret was focussed on the impact to himself and his family, rather than the impact to the victim.

30. I am assisted by a psychological report of Ms Brigida. She opines on the science of the male brain not being fully developed until about 25. I accept the offender acted as a person who had not fully developed consequential thinking and control impulses. Had he been sentenced at the time; this information and the increased significance of rehabilitation would have informed sentence. Given the delay, only the former has application. This serves to modestly lessen moral culpability.

31. The offender is assisted by references and letters. Individually and in combination they attest to the positive qualities of the offender. But for the offending, all observations are resoundingly positive.

32. His current employer is supportive.

33. His wife has provided details of the impact to the family resultant from his extradition. She noted the offender ‘regrets the circumstances that led to his current situation’. She attended the proceedings on sentence and provided support through her presence.

34. His cousin indicated the offender ‘deeply regrets his actions’.

35. His grandfather indicated he ‘believed’ the offender was sorry for what he had done.

36. His uncle by marriage said the offender had stated his regret not only for the offence but also the effect it has had on his family.

37. His aunt indicated the offender to be very sorry for what he had done.

38. The difficulty with these accounts is that none state what was said by the offender to convey regret. Some expressions of regret are focussed on issues other than the offending and the victim. Each is assessed against his sentiments conveyed as recorded in the Sentencing Assessment Report.

39. The offender wrote to the Court in a letter composed two weeks before sentence. He wrote to express his sincere apology for the offences. He wrote of his insight into the harm and stress of his offending and his regret. He said he understood the embarrassment and harm suffered by the victim.

40. The victim chose to read her Victim Impact Statement. It was a well-considered and powerful account of the impact she perceived occasioned. She was understandably emotional. The offender appeared disinterested in this experience. He did not display any emotional response to what was a direct account of the harm occasioned to the victim by the accepted offending. The only occasion he became discernibly upset was during the Crown submissions referring to his reported controlling and jealousy informed relationship with the victim. Despite expressed regret and the pleas of guilty, I do not accept he has genuine remorse or insight into the harm occasioned by his conduct at the time and continuing decades later.

41. General deterrence and retribution are important considerations in offences of personal violence and more so domestic violence offending. No factors lessen their significance.

42. I accept that some offences were capable of being dealt with in the Local Court. I am mindful of the sentencing scope in that jurisdiction. The offences are intrinsically linked, and it is appropriate they proceed together.

43. The offender was required to report daily on bail for the first 7 or 8 months and thereafter three times weekly. He was required to reside with his grandfather in NSW. This has caused him inconvenience and deprived him of the interaction he would otherwise have enjoyed with his family. It has created a hardship to his family as he was a stay-at-home carer. There is a financial and emotional strain. I am provided with a letter from his wife’s GP. He has obtained employment and provides some financial assistance to his family. If he was imprisoned this strain would continue but be amplified as the financial support would cease. He suggests symptoms of anxiety and depression since extradition to NSW.

44. I add that the offender was in breach of his bail. It became known after the proceedings on sentence he was not residing at the bail address. It was indicated from the bar table that he acquired rental premises as respite from his grandfather. This was a financial burden he voluntarily assumed at a time he advances a financial burden from residing away from his family. The breach of bail does not bode well for the ability to comply with a court order. It is hoped he will alter his lackadaisical approach to compliance.

45. The offender was in custody for a total of 48 days. Any sentence would take into account theses specific days together with ameliorating sentence to reflect bail conditions.

46. Whilst acknowledging the limited assistance to be gleaned from statistics, I have had regard to the documents provided.

47. I determine that the s.5 threshold is passed for all three offences.

48. I am to determine an appropriate overall sentence, being mindful of the need for separate criminality to be reflected in the final sentence, moderated by the principle of totality. The three offences occurred close in time and present as a continuum. The second indecent assault presents as a separate assault but one that transitioned from the first assault. This speaks of limited accumulation. The detention also follows on from the indecent assaults. It is separate in nature. Some greater accumulation is required to reflect the difference in the nature of the offending.

26. I intend to impose an aggregate sentence.

27. I nominate the following indicative sentences, each reduced by 5% to reflect the plea:

Count 1: 11 months and 2 weeks imprisonment.

Count 2: 11 months and 2 weeks imprisonment.

Count 3, taking into account the further offence on the form 1: 1 year and 11 months imprisonment.

51. The proposed sentence is one of 2 years and 11 months imprisonment.

52. It was submitted on behalf of the offender that should an overall sentence of 3 years or less be imposed, consideration should be given to the imposition of an ICO. Before making such an order, the protection of the victim must be taken into account. Given the delay, there is no concern for the protection of the victim.

53. I am required to embark on an evaluative exercise that treats community safety as the paramount consideration. This consideration requires an assessment of a number of factors including the risk of reoffending in a manner that may affect community safety and the conditions that might be included in an ICO and enforced by Community Corrections.

54. I am satisfied that the risk of reoffending in a manner that may affect community safety would be better reduced by an Intensive Correction Order than full-time imprisonment based upon the assessed risk of reoffending and of rehabilitation, compliance with bail and the proposal by Community Corrections to enact supervision. I appreciate the restrictions placed upon the offender given he will be bound by a NSW order.

55. The offender is convicted.

56. There being no other appropriate penalty, the offender is sentenced to a term of imprisonment for a period of 2 years and 11 months. The sentence imposed is to be served by way of an intensive correction order.

57. The offender must report to the Community Corrections Office at Sutherland as soon as practicable but no later than 7 days from today.

58. The conditions of the order are that the offender:

1. must not commit any offence;

2. must submit to supervision by a community corrections officer. It is recommended this condition not be suspended given the breach of bail; and

3. must perform 600 hours of community service work as a community service work condition.

59. If there is a failure to comply with the conditions of this order, sanctions may be imposed. Those sanctions may include a formal warning, imposing more stringent conditions or it may include revocation of this order.

60. If the order is revoked the offender may be required to serve all or some of the period of your sentence in full-time custody.

61. Finally, the offender is directed to attend the court registry where a copy of this order will be explained and given to him.

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Decision last updated: 15 August 2024