R v Katarzynski - [2005] NSWCCA 72

CITATION:
Regina v Katarzynski [2005] NSWCCA 72
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 4 February 2005

JUDGMENT DATE:

9 March 2005

JUDGMENT OF:
Spigelman CJ at 1; Sully J at 2; Kirby J at 82

DECISION:
Appeal against conviction dismissed; Leave granted to appeal against sentence; Appeal against sentence allowed; sentence imposed at first instance quashed; appellant sentenced to imprisonment for 20 years to comence on 6 April 2001 with a non-parole period of 15 years to commence on 6 April 2001 and to expire on 5 April 2016, upon which date appellant eligible for release to parole.

LEGISLATION CITED:

Crimes Act 1900 (NSW)

CASES CITED:
Royall v The Queen [1990] 172 CLR 376
Murray v The Queen [2002] 211 CLR 193
Ryan v The Queen (1967) 121 CLR 205
La Fontaine v The Queen [1976] 136 CLR 62
Parker v The Queen [1963] 111 CLR 610
Reg v Kirkham (1837) 173 ER 422
Reg v Duffy [1949] 1 All ER 932

PARTIES:
Regina
Kirstaen William KATARZYNSKI

FILE NUMBER(S):
CCA 2004/1667

COUNSEL:
D. Frearson SC - Crown
T. Game SC - Appellant

SOLICITORS:
S. Kavanagh - Crown
M. Rumore - Appellant

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
70013/02

LOWER COURT JUDICIAL OFFICER:
Howie J

- 16 -

2004/1667

SPIGELMAN CJ
SULLY J
KIRBY J

9 March 2005

REGINA v Kirstain William KATARZYNSKI

Judgment

1 SPIGELMAN CJ: I agree with Sully J.

SULLY J:

Introduction

2 In June and July 2002 the appellant, Mr. Katarzynski, stood trial before Howie J and a jury. He was tried upon an indictment charging him with having murdered, on 6 April 2001 at Liverpool, one Benjamin Hillier. The jury found him guilty of that crime; and on 3 October 2002 Howie J sentenced him to imprisonment for 24 years with a non-parole period of 18 years.

3 The appellant now appeals against his conviction; and he applies for leave to appeal against his sentence. It is appropriate to note at once, and without constant repetition hereinafter, that the appellant was represented at trial by counsel of wide experience in the conduct of defence cases in criminal trials.

4 The competing cases at trial are summarised helpfully and conveniently, and as follows, in the remarks on sentence:

“On the evening preceding the shooting the offender had been drinking alcohol at the Collingwood Hotel, Liverpool. During the evening he became friendly with a number of persons earlier unknown to him including Mr. Fabian, a witness who gave evidence at the trial. In the early hours of 6 April his brother, Paul Katar, joined the offender at the hotel. By about 2 a.m., when the deceased and the offender first came into conflict, the offender was heavily intoxicated. He later told police that he had drunk somewhere between 10 to 20 drinks of Bourbon and coke. Another witness, who had been in his company through the evening, indicated that the number…

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 Katarzynski

Details

AGLC: Regina v Katarzynski [2005] NSWCCA 72
Case: [2005] NSWCCA 72
Decision Date: 9 March 2005

CaseChat Overview and Summary

In Regina v Katarzynski, the appellant appealed against his conviction and sentence for the murder of Benjamin Hillier. The trial judge, Howie J, found the appellant guilty and sentenced him to imprisonment for 24 years with a non-parole period of 18 years. The appellant challenged the conviction on several grounds, including errors in the trial judge's directions on voluntariness, causation, murder by reckless indifference to human life, self-defence, and provocation. The appellant also sought leave to appeal against the sentence, arguing it was manifestly excessive. The Court of Criminal Appeal, consisting of Spigelman CJ, Sully J, and Kirby J, dismissed the appeal against conviction but allowed the appeal against sentence. The Court found no errors in the trial judge's directions and concluded that the evidence supported the jury's verdict that the appellant deliberately fired three shots at the victim, one of which was fatal. However, the Court determined that the original sentence was too severe, taking into account the appellant's subjective circumstances and the victim's aggressive behavior. The Court substituted a sentence of 20 years imprisonment with a non-parole period of 15 years.

Orders