R v Czerniawsky - [2009] VSCA 2

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 250 of 2007

THE QUEEN
	v
DANIEL LEE CZERNIAWSKY

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JUDGES:	KELLAM and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 February 2009
DATE OF JUDGMENT:	3 February 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 2

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Criminal Law – Sentence – Attempted armed robbery – Re-offending on parole – Sentencing judge took account of ‘possibility’ of Adult Parole Board cancelling appellant’s parole purportedly in compliance with R v Orphanides (2002) 130 A Crim R 403 – Judge unaware that Orphanides had been overruled by R v Piacentino; R v Ahmad (2007) 15 VR 501 – Sentencing error thereby established – Error operated in favour of appellant - Court of view that no different sentence should have been passed – Appeal dismissed

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G J Silbert SC and B L Sonnet	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Ms F L Dalziel	Victoria Legal Aid

KELLAM JA
WEINBERG JA:

The appellant, Daniel Lee Czerniawsky, now aged 26, pleaded guilty, in the County Court at Bendigo, to one count of attempted armed robbery. On 24 August 2007, he was sentenced to four years’ imprisonment with a non-parole period of two years and six months. The offence was committed only weeks after the appellant had been released on parole for offences of armed robbery, burglary and theft.

On 30 August 2007, the Adult Parole Board cancelled the appellant’s parole. A further six months and two days’ imprisonment were added to his head sentence.

The appellant contends that the sentencing judge was wrong to take into account the possibility that the Adult Parole Board might cancel his parole. He also sought, in his grounds of appeal, to lead fresh evidence, in the form of affidavit material, as to the Adult Parole Board’s actions in order to demonstrate that a lesser sentence should now be passed.

The appellant committed the attempted armed robbery in the early hours of 8 January 2007. Shortly after midnight, his victim, Eileen Evans, who was aged 54 at the time, had finished her shift as a kitchen hand at a Bendigo restaurant.

Ms Evans went to a hotel a short distance away in order to play gaming machines and to have a coffee. At around 12.45 am, she left to walk home carrying her handbag with one strap over her shoulder.

Approaching Ms Evans from behind, the appellant grabbed her by the hair. He held the pointed end of a knife to her throat and threatened to stab her if she did not surrender her handbag.

Ms Evans screamed for help. The appellant kept the knife to her throat and tried to pull the handbag away from her. However, Ms Evans would not let go of her bag and clung to it while she continued to yell loudly.

Frightened of being caught, the appellant loosened his grip on the handbag and ran away. He discarded the knife in one…

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 R v Czerniawsky

Details

AGLC: R v Czerniawsky [2009] VSCA 2
Case: [2009] VSCA 2
Decision Date: 3 February 2009

CaseChat Overview and Summary

The appellant in this case, Czerniawsky, was found guilty of attempting to commit armed robbery. The sentencing judge imposed a sentence that took into account the possibility that the Adult Parole Board might cancel the appellant's parole. The appellant appealed against his sentence, arguing that the sentencing judge erred by considering the potential cancellation of parole as a mitigating factor. The error was based on the judge's reliance on R v Orphanides, which was subsequently overruled by R v Piacentino; R v Ahmad.

The central legal issue in this appeal was whether the sentencing judge's consideration of the potential cancellation of parole constituted a significant error that warranted a new sentencing hearing. The appellant contended that the judge's reliance on Orphanides, which had been superseded by Piacentino; Ahmad, resulted in a flawed sentencing process. The court had to determine if this error was substantial enough to impact the fairness and appropriateness of the sentence.

The court examined the nature of the error and its impact on the sentence. It noted that the judge's consideration of the parole cancellation was intended to comply with the decision in Orphanides, which had been overruled by Piacentino; Ahmad. However, the error did not prejudice the appellant as it operated in his favour. The court held that, given the error did not lead to a harsher sentence, and considering the overall context of the sentencing, the error did not necessitate a new hearing. Therefore, the appeal was dismissed, and the original sentence was upheld.

No further orders were made by the court beyond dismissing the appeal and upholding the original sentence.

Orders