R v GLADKOWSKI, Bogdan Tomasz (applicant/appellant)
FILE NO/S:
CA No 165 of 2000 DC No 237 of 2000
DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Southport
DELIVERED ON:
1 September 2000
DELIVERED AT:
Brisbane
HEARING DATE:
23 August 2000
JUDGES:
Pincus and Thomas JJA, Atkinson J Judgment of the Court
ORDER:
Application granted and the appeal allowed. The sentences below are varied by reducing the sentences to two and a half years with a recognisance release order after eight months. The recognisance is to be in the sum of $2,000 conditioned to the applicant's being of good behaviour for a period of 22 months. Under s 21E of the Crimes Act it is declared that the sentences are reduced for the reason that the offender has undertaken to co-operate with law enforcement agencies in proceedings, and that the sentences that would have been imposed but for this reduction would have been three years and three months with a non-parole period of 13 months.
CATCHWORDS:
CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – MISCELLANEOUS MATTERS – INFORMERS - informer’s discount – whether discount adequate –applicant co-operated in the incrimination of co-offenders and provided undertaking pursuant to s 21E of the Crimes Act1914 to co-operate and give truthful evidence in the prosecution of co-offenders – discount inadequate to reflect value of incrimination of co-offenders and consequential danger to applicant – s 21E requires only future co-operation to be taken into account – other aspects of co-operation (including self-incrimination and pre-sentence incrimination of others) covered by s 16A(2)(h)
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS
Golding (1983) 3 A Crim R 26, considered McGookin and Robinson (1986) 20 A Crim R 438, referred to R v Demir CA 13 of 1995, 4 August 1995, referred to R v Gangelhoff [1998] VSCA 20, 29 July 1998, referred to R v Krogh [1999] QCA 464, CA 261 of 1999, 4 November 1999, referred to R v Pang (1999) 105 A Crim R 474, considered
R v Thompson (1994) 76 A Crim R 75, considered
COUNSEL:
A W Moynihan for the applicant/appellant D Adsett for the respondent
SOLICITORS:
Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Commonwealth) for the respondent
THE COURT: This is an application for leave to appeal against sentences imposed on 23 counts of defrauding the Commonwealth and 11 counts of attempting to defraud the Commonwealth. The effective sentence was three and a half years imprisonment with a non-parole period of 12 months.
The circumstances were that during a little over three years, between 1996 and 1999 the applicant, who had some book-keeping experience but no formal qualifications, carried on business as a tax consultant on the Gold Coast. He prepared and…
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.
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Details
AGLC
R v Gladkowski [2000] QCA 352
Case
[2000] QCA 352
Decision Date
CaseChat Overview and Summary
In the case of R v Gladkowski, the applicant, who had been convicted, appealed against the sentences imposed by the trial judge. The applicant had provided information to the police and had given an undertaking to co-operate and give truthful evidence in the prosecution of co-offenders. The legal issues that arose were whether the discount given for the informer's co-operation was adequate and whether there were grounds for interfering with the sentences imposed by the trial judge. The applicant argued that the discount was inadequate to reflect the value of the incrimination of the co-offenders and the danger to the applicant. The court found that the discount was inadequate and that the sentences were excessive given the applicant's co-operation. The court held that s 21E of the Crimes Act requires only future co-operation to be taken into account, and other aspects of co-operation (including self-incrimination and pre-sentence incrimination of others) are covered by s 16A(2)(h). The court granted the application and allowed the appeal against the sentences, reducing them to two and a half years with a recognisance release order after eight months. The court also declared that the sentences were reduced for the reason that the offender had undertaken to co-operate with law enforcement agencies in proceedings. The sentences that would have been imposed but for this reduction were three years and three months with a non-parole period of 13 months. The court ordered that the recognisance be in the sum of $2,000 and conditioned to the applicant's being of good behaviour for a period of 22 months.
Orders
Orders of the court
Application granted and the appeal allowed. The sentences below are varied by reducing the sentences to two and a half years with a recognisance release order after eight months. The recognisance is to be in the sum of $2,000 conditioned to the applicant's being of good behaviour for a period of 22 months. Under s 21E of the Crimes Act it is declared that the sentences are reduced for the reason that the offender has undertaken to co-operate with law enforcement agencies in proceedings, and that the sentences that would have been imposed but for this reduction would have been three years and three months with a non-parole period of 13 months.