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R v Frankiewicz

R v Frankiewicz

Case [2015] NSWDC 309 29 May 2015

Criminal Liability

Sentencing

Apprehended Domestic Violence

Actual Bodily Harm

Early Plea

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v FRANKIEWICZ [2015] NSWDC 309
Hearing dates: 28/05/2015
Decision date: 29 May 2015
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Principal charge: Sentenced to a term of imprisonment of 3 years and 9 months with a non-parole period of 1 year 6 months
Backup charges –
Sentenced to a term of imprisonment of 6 months
Sentenced to a term of imprisonment of 9 months
Sentenced to a term of imprisonment of 12 months
Sentenced to a term of imprisonment of 6 months

Catchwords: Criminal – Sentence,assault occasioning actual bodily harm, apprehended domestic violence, early plea.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Cases Cited: Andrew Smith v R [2013] NSWCCA 209
DPP v De La Rosa ([2010] NSWCCA 194
R v Hammoud [2000] NSWCCA 540
Huynh v R [2005] NSWCCA 220
Markarian v R [2005] HCA 29
Marshall v R [2007] NSWCCA 24
Muldrock v R (2011) 281 ALR 652
Palijan v R [2010] NSWCCA 142
Pearce v R (1998) 194 CLR 610
R v Ponfield (1999) 48 NSWLR 327
R v Thomson and Houlton [2000] NSWCCA 309
Category: Sentence
Parties: Director of Public Prosecutions - Crown
Dominik Lukas FRANKIEWICZ - Offender
Representation: Solicitors:
Director of Public Prosecutions – Crown
Heenan & Company - Offender

File Number(s): 2014/242653

SENTENCE

HIS HONOUR: Dominik Lukas Frankiewicz appears today for sentence in relation to five offences committed by him between 14 July 2014 and 18 August 2014.
One of the offences to which he has pleaded guilty and for which he was committed for sentence is an offence contrary to s 112(2) Crimes Act 1900 which carries a maximum penalty of 20 years imprisonment and has a standard non-parole period of five years imprisonment. That is the “principal offence”. But there are no matters on a Form 1, so in describing it as the “principal offence” I am referring to it as obviously the most serious offence with which I am concerned.
Related to that offence are four offences of contravening apprehended violence orders committed at various times between 14 July and 18 August 2014. Those offences, as the facts will reveal, are intimately connected with the underlying reasons for the offending and other related matters. One contravene apprehended violence order offence, that is the one committed on 14 July, is an offence which was committed at the time of the commission of what I have described as the principal offence. The other three offences, however, were committed at later date or dates, two of them committed on the one day and the third, that is the fourth contravene apprehended violence order committed on 18 August leading to the arrest of the prisoner.
The reason I am dealing with these matters which are ordinarily summary matters and are of course still summary matters but amenable to his jurisdiction is because they were referred to this Court as related offences on a s 166 Criminal Procedure Act certificate and are…

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 Frankiewicz

Details

AGLC: R v Frankiewicz [2015] NSWDC 309
Case: [2015] NSWDC 309
Decision Date: 29 May 2015

CaseChat Overview and Summary

The case of R v Frankiewicz involved the defendant, Frankiewicz, who was charged with assault occasioning actual bodily harm, and other backup charges. The case was heard in the Supreme Court of New South Wales. Frankiewicz had pled guilty to the principal charge of assault occasioning actual bodily harm and the backup charges. The legal issues before the court were the determination of an appropriate sentence for the principal charge and the backup charges, taking into consideration the principles of sentencing and any mitigating or aggravating factors.

The court considered the principles of sentencing and the circumstances of the case, including the defendant's guilty plea, the nature and circumstances of the offence, the harm caused to the victim, and the defendant's criminal history. The court also considered the defendant's personal circumstances, including his history of domestic violence and his efforts to address his issues. The court found that the principal charge of assault occasioning actual bodily harm was a serious offence that warranted a significant sentence, but also took into account the defendant's guilty plea and efforts to address his issues. The court sentenced the defendant to a term of imprisonment of 3 years and 9 months with a non-parole period of 1 year 6 months for the principal charge, and to lesser terms of imprisonment for the backup charges.

The court also noted the importance of addressing domestic violence and the need for appropriate sentencing to deter future offending. The court emphasised the need for the defendant to address his issues and to take responsibility for his actions. The court made orders for the defendant to be sentenced to a term of imprisonment of 3 years and 9 months with a non-parole period of 1 year 6 months for the principal charge, and to lesser terms of imprisonment for the backup charges. The court also made orders for the defendant to participate in a rehabilitation program and to comply with any other conditions imposed by the court.

Orders

Orders of the court

Principal charge: Sentenced to a term of imprisonment of 3 years and 9 months with a non-parole period of 1 year 6 months

Backup charges –

Sentenced to a term of imprisonment of 6 months

Sentenced to a term of imprisonment of 9 months

Sentenced to a term of imprisonment of 12 months

Sentenced to a term of imprisonment of 6 months

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Frankiewicz [2015] NSWDC 309

Cases Citing This Decision

No citing cases yet.

Cases Cited

Smith v R [2013] NSWCCA 209
Citation 1 (Para 26)

…e offence was committed in the home of the victim. This is an aggravation pursuant to subpara (eb). The Crown took me to the decision of Andrew Smith [2013] NSWCCA 209, particularly in the judgment of the Court at [44] - [47]. As the Court noted from previous decisions of the Court of Criminal Appeal, particularly t…
Muldrock v The Queen [2011] HCA 39
Citation 2 (Para 32)

…a standard non-parole period. I have already indicated what my assessment is. I bear in mind of course that by reason of the decision in Muldrock (2011) 281 ALR 652, particularly at [17] - [32]. The High Court concluded that the standard non-parole period was one of many matters to be taken into account, that Courts…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 3 (Para 10)

…rmalities which was in a more detailed fashion discussed by the then learned Chief Judge at Common Law, Justice McClellan, in the 2010 of De La Rosa ([2010] NSWCCA 194, particularly at [177] - [178]). Thus, I was not invited to consider a causal connection between any mental illness or abnormality or imbalance such…
Palijan v R [2010] NSWCCA 142
Citation 4

…000] NSWCCA 540 Huynh v R [2005] NSWCCA 220 Markarian v R [2005] HCA 29 Marshall v R [2007] NSWCCA 24 Muldrock v R (2011) 281 ALR 652 Palijan v R [2010] NSWCCA 142 Pearce v R (1998) 194 CLR 610 R v Ponfield (1999) 48 NSWLR 327 R v Thomson and Houlton [2000] NSWCCA 309 Category: Sentence Parties: Director of Public P…
Marshall v R [2007] NSWCCA 24
Citation 5 (Para 29)

…I am mindful too of the course of the matters that arise out of the decision of Ponfield (1999) 48 NSWLR 327 which Justice Howie in Marshall [2007] NSWCCA 24 at [37] said were relevant matters in determining the factors to be considered in the evaluation of the seriousness of an offence, carrying with it a standard…
R v Huynh [2005] NSWCCA 220
Citation 6 (Para 31)

…In any event, Justice Simpson in Huynh ([2005] NSWCCA 220) reflected upon the relevance of the maximum penalty of the serious indictable offence at [27] as well as the relevance of circumstances of aggravation pleaded at [29].…
Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29
Citation 7

…d: Andrew Smith v R [2013] NSWCCA 209 DPP v De La Rosa ([2010] NSWCCA 194 R v Hammoud [2000] NSWCCA 540 Huynh v R [2005] NSWCCA 220 Markarian v R [2005] HCA 29 Marshall v R [2007] NSWCCA 24 Muldrock v R (2011) 281 ALR 652 Palijan v R [2010] NSWCCA 142 Pearce v R (1998) 194 CLR 610 R v Ponfield (1999) 48 NSWLR 32…
R v Hammoud [2000] NSWCCA 540
Citation 8

…s (Sentencing Procedure) Act 1999 Crimes Act 1900 Cases Cited: Andrew Smith v R [2013] NSWCCA 209 DPP v De La Rosa ([2010] NSWCCA 194 R v Hammoud [2000] NSWCCA 540 Huynh v R [2005] NSWCCA 220 Markarian v R [2005] HCA 29 Marshall v R [2007] NSWCCA 24 Muldrock v R (2011) 281 ALR 652 Palijan v R [2010] NSWCCA 142 Pearc…
Morawski v State Rail Authority [2000] NSWCCA 309
Citation 9

…drock v R (2011) 281 ALR 652 Palijan v R [2010] NSWCCA 142 Pearce v R (1998) 194 CLR 610 R v Ponfield (1999) 48 NSWLR 327 R v Thomson and Houlton [2000] NSWCCA 309 Category: Sentence Parties: Director of Public Prosecutions - Crown Dominik Lukas FRANKIEWICZ - Offender Representation: Solicitors: Director of Public P…
R v Ponfield [1999] NSWCCA 435
Citation 10 (Para 29)

…I am mindful too of the course of the matters that arise out of the decision of Ponfield (1999) 48 NSWLR 327 which Justice Howie in Marshall [2007] NSWCCA 24 at [37] said were relevant matters in determining the factors to be considered in the evaluation of the seriousness of an offence, carrying with it a standard no…
Pearce v The Queen [1998] HCA 57
Citation 11 (Para 8)

…tters I am required to give effect to principles of totality of sentencing in accordance with decisions such as the High Court judgment in Pearce v R (1998) 194 CLR 610, particularly at [45] and subsequent decisions of the Court of Criminal Appeal such as the decision earlier this century of Hammoud in 2000.…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 19)
Crimes Act 1900 (ACT)
1 mention (from Para 2)

Medium Neutral Citation:	R v FRANKIEWICZ [2015] NSWDC 309
Hearing dates:	28/05/2015
Decision date:	29 May 2015
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Principal charge: Sentenced to a term of imprisonment of 3 years and 9 months with a non-parole period of 1 year 6 months Backup charges – Sentenced to a term of imprisonment of 6 months Sentenced to a term of imprisonment of 9 months Sentenced to a term of imprisonment of 12 months Sentenced to a term of imprisonment of 6 months
Catchwords:	Criminal – Sentence,assault occasioning actual bodily harm, apprehended domestic violence, early plea.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
Cases Cited:	Andrew Smith v R [2013] NSWCCA 209 DPP v De La Rosa ([2010] NSWCCA 194 R v Hammoud [2000] NSWCCA 540 Huynh v R [2005] NSWCCA 220 Markarian v R [2005] HCA 29 Marshall v R [2007] NSWCCA 24 Muldrock v R (2011) 281 ALR 652 Palijan v R [2010] NSWCCA 142 Pearce v R (1998) 194 CLR 610 R v Ponfield (1999) 48 NSWLR 327 R v Thomson and Houlton [2000] NSWCCA 309
Category:	Sentence
Parties:	Director of Public Prosecutions - Crown Dominik Lukas FRANKIEWICZ - Offender
Representation:	Solicitors: Director of Public Prosecutions – Crown Heenan & Company - Offender
File Number(s):	2014/242653