R v Kalinin - [1998] QCA 261

COURT OF APPEAL

[1998] QCA 261

de JERSEY CJ DERRINGTON J

CA No 147 of 1998
THE QUEEN
v.

DARREN ANDREW KALININ	Applicant
BRISBANE ..DATE 16/07/98
JUDGMENT
160798 T9/SA2 M/T COA159/98

DERRINGTON J: This is an application for leave to appeal against a sentence of two years' imprisonment on each of two counts of serious assault and one count of assault occasioning bodily harm whilst armed.

The applicant had a serious relevant criminal history that included convictions for assaulting a police officer, resisting a police officer, assault occasioning bodily harm and common assault. These convictions for assaults terminated about nine years prior to the present offences.

He also had many convictions for obscene language, behaving in an indecent manner, drink driving, unlawfully entering a dwelling house, wilful and unlawful damage to property, behaving in a disorderly manner, stealing and false pretences and some relatively minor drug offences.

The present offences occurred during the one occasion when the applicant was behaving violently and resisting the attempts of the police to subdue him. He had been engaged in domestic

violence in the early hours of the morning which caused a
neighbour to summon the attendance of the police.

On hearing noises inside the applicant's unit where it was feared that he was detaining his two young children, the police knocked on the front door and identified themselves. After an obscene response from the applicant and the sound of further noises inside the unit, the police again identified themselves and threatened to force their way in but the applicant, again in obscene terms, told them to leave.

2 JUDGMENT

160798 T9/SA2 M/T COA159/98

When further violent noises were heard coming from the unit, the police obtained permission to enter. After they threatened to force their way in, the applicant again told them to go or he would kill them all. The police then commenced to make forcible entry but found the door barricaded. They tried to speak to the applicant and explained that they wished to ensure that the children were safe but the applicant threw something at the door and continued to threaten them.

Smelling what they believed to be gas or petrol, the police evacuated the building and then used a sledge hammer to break down the front door of his unit. The police tried to clear the barricade which the applicant was resisting. He was seen to be holding a piece of wood with which he struck one policeman, Constable Lees, on the back of the right shoulder causing severe pain. He continued to strike at Lees with it while Lees responded with his baton.

Despite being struck a number of times, the applicant did not retreat and continued to strike at the police officer. As other police officers tried to enter, the applicant spat on the face of one of them, Constable Newman. Another police officer, Plain-clothes Constable Symes, attempted to apply a restraining hold to the applicant's neck but the applicant bit his arm causing serious pain. After…

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 Kalinin

Details

AGLC: R v Kalinin [1998] QCA 261
Case: [1998] QCA 261
Decision Date: 16/07/1998

CaseChat Overview and Summary

In the case of R v Kalinin, the applicant, Darren Andrew Kalinin, sought leave to appeal against his sentence of two years' imprisonment on each of two counts of serious assault and one count of assault occasioning bodily harm whilst armed. The applicant had a significant criminal history, which included convictions for multiple assaults, drug offences, and other public order offences. The present offences arose from an incident involving domestic violence and the applicant's violent resistance to police intervention. The applicant's conduct during the incident included threatening police officers, striking one with a piece of wood, and biting another officer's arm. The court found that the applicant had used his knowledge of his Hepatitis C infection as a weapon, causing significant fear and distress to the police officers involved.

The legal issues before the court were whether the trial judge erred in her assessment of the maximum penalties applicable at the time of the offence and whether the sentence imposed was manifestly excessive. The applicant argued that the trial judge's misunderstanding of the maximum penalties led to an inappropriate sentence. The court considered that the trial judge's sentence was influenced by the mistaken belief regarding the maximum penalties and that, had she been correctly informed, she would likely have imposed a different sentence. The court also noted that the sentences should not be considered appropriate under the new regime of maximum penalties.

The court found that the appeal should be allowed, and the sentences set aside, with sentences of 18 months imprisonment substituted in each case. The court emphasised that this adjustment was not an underestimation of the gravity of the applicant's conduct but a response to the trial judge's error in understanding the applicable maximum penalties. The court concluded that the sentences, as adjusted, were appropriate given the circumstances of the case.

Orders