R v Jaworowski - [1999] NSWCCA 430

Reported Decision:
108 A Crim R 489

New South Wales

Court of Criminal Appeal

CITATION: REGINA v JAWOROWSKI [1999] NSWCCA 430

FILE NUMBER(S): CCA 60484/99

HEARING DATE(S): 29 October 1999

JUDGMENT DATE:
29 October 1999

PARTIES :

REGINA v Zigmunt Bruno JAWAROWSKI

JUDGMENT OF: Simpson J at 1; Kirby J at 26

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/21/0144

LOWER COURT JUDICIAL OFFICER: Goldring DCJ

COUNSEL: P G Berman - Crown
P J D Hamill - Applicant

SOLICITORS: S E O'Connor - Crown
T A Murphy - Applicant

CATCHWORDS:

ACTS CITED: Crimes Act 1900
Sentencing Act 1989

CASES CITED:
R v Sen (CCA 11 June 1999)
R v Jurisic (1998) 45 NSWLR 209
R v Veen No 2 (1987) 164 CLR 465 at 477

DECISION: Leave to appeal granted; the appeal allowed; the sentence quashed; in lieu thereof there be substituted a sentence of a total term of imprisonment for eight years comprising a minimum term of five years commencing on 14 August 1998 and expiring on 13 August 2003 and an additional term of three years commencing on 14 August 2003 and expiring on 13 August 2006.

IN THE COURT OF
CRIMINAL APPEAL

60484/98

SIMPSON J
KIRBYJ

29 October 1999

REGINA v Zigmunt Bruno JAWROWSKI

JUDGMENT

SIMPSON J :

1 The applicant seeks leave to appeal a sentence imposed upon him by Goldring DCJ in the District Court on 14 August 1998 following his plea of guilty to a charge of dangerous driving causing death in circumstances of aggravation. The maximum penalty provided for the offence pursuant to s 52A(2) and (4) of the Crimes Act 1900 is imprisonment for fourteen years. Goldring DCJ sentenced the applicant to a total term of imprisonment for eight years. He declined to find that there were special circumstances justifying departure from the ratio referred to in s 5(2) of the Sentencing Act 1989 and divided the sentence conventionally into a minimum term of six years and an additional term of two years.
2 The offence was a very bad example of its kind. At 12.20pm on Tuesday 15 October 1996 the applicant drove his four wheel drive vehicle out of the driveway of his home at St Ives onto Eastern Arterial Road where he collided with a motorcycle being driven by David Peter Thorne who had been travelling east on that road. The cyclist came to rest beneath the four wheel drive and it seems the applicant initially sought to move his vehicle but was prevented from doing so by a passing motorist. He immediately realised what had happened and displayed signs of agitation. He went into the house to make a telephone call but then returned to the scene. It appears that while he was inside the house he consumed some alcohol.
3 Police attended the scene and the applicant told them that he had consumed a small quantity of brandy and dry ginger ale earlier in the day. A roadside breath test was conducted which returned…

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 Jaworowski

Details

AGLC: R v Jaworowski [1999] NSWCCA 430
Case: [1999] NSWCCA 430
Decision Date: 29 October 1999

CaseChat Overview and Summary

In Regina v Jaworowski, the Court of Criminal Appeal reviewed a sentence imposed on the appellant, Zigmunt Bruno Jaworowski, for dangerous driving causing death under aggravated circumstances. The District Court had sentenced Jaworowski to a total term of imprisonment for eight years, consisting of a minimum term of six years and an additional term of two years. Jaworowski appealed the sentence, arguing that it was manifestly excessive and that the District Court judge had erred in not finding special circumstances to justify a different ratio of the minimum and additional terms. The appeal was allowed, and the sentence was restructured.

The primary legal issue in the appeal was whether the sentence imposed by the District Court was manifestly excessive and whether the judge had erred in not considering special circumstances that could have justified a different ratio of the minimum and additional terms of imprisonment. The Court of Criminal Appeal considered the objective seriousness of Jaworowski's conduct, his history of alcohol abuse and depression, and the lengthy term of imprisonment he would serve. The Court found that while the sentence was heavy, it was not outside the range properly available to the sentencing judge. However, the Court concluded that the sentencing judge had not approached the question of special circumstances in the required manner and that it was necessary for the Court to make its own evaluation of whether special circumstances existed. The Court found that special circumstances did exist and ordered the sentence to be restructured. The Court substituted a sentence of a total term of imprisonment for eight years, comprising a minimum term of five years and an additional term of three years.

Orders