R v Kazakoff - [1998] QCA 459

COURT OF APPEAL

[1998] QCA 459

McPHERSON JA
AMBROSE J

BYRNE J

CA No 236 of 1998

THE QUEEN

PAUL ROBERT KAZAKOFF	Respondent
and
ATTORNEY-GENERAL OF QUEENSLAND	Appellant

BRISBANE
..DATE 27/08/98
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AMBROSE J: This is an appeal by the Attorney-General against the inadequacy of
the sentence imposed upon the respondent on 11 June 1998.
On that occasion, on that date he pleaded guilty on an
ex officio indictment to a charge of an assault occasioning bodily harm whilst armed

and in company.

The victim of the offence was a policeman acting in the course of his duty. The
maximum penalty for this offence at the time when it was committed on 18 January
1998 was imprisonment for 10 years.

At the time of the offence the respondent had just turned 17 about a month earlier. The sentence imposed was one of two and a half years imprisonment with a recommendation that he be eligible for parole after serving 10 months of that term. He had already been held in custody for 102 days with respect to the offence to which he had pleaded guilty and it was declared that the pre-sentence custody was to be deemed time served under the sentence imposed.

The recommendation for parole was expressly based or explained as a recognition
of the respondent's plea of guilty on the

ex officio indictment presented.

The respondent had some previous criminal history as a juvenile and the learned
sentencing Judge dealt with the effect, if any, that ought be given to that previous
criminal history. It seems to me that it would really be unhelpful at this stage to
embark upon a detailed consideration of it. The real question is whether the
270898 T12/TW12 M/T COA212/98
sentence of two and a half years imprisonment imposed for this offence was
manifestly inadequate and in my view really not helpful to look at things other than
the circumstances involved in the commission of that offence, and I will now turn to
those circumstances.

At about 12.05 a.m. on 18 January 1998 two policeman attended a disturbance outside the Manly RSL Hall. The complainant, a Constable McNamara with his partner, Constable Elley attended. When they arrived they found a large crowd outside the RSL Hall; there had obviously been a brawl; there was a lot of smashed glass on the ground and a male person was laying on the ground receiving some attention from a lady who was there. He had blood across his face and he seemed to be unresponsive.

The complainant who was ultimately assaulted and suffered significant injury tried to get assistance by radio, but was unsuccessful. Shortly after the arrival a fight broke out amongst a crowd of people; Constable Elley the complainant's partner for the evening went in an effort to stop the fight and commenced to place under arrest one of the participants. He was then surrounded by a number of male persons and at least four others ran towards him.…

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 Kazakoff

Details

AGLC: R v Kazakoff [1998] QCA 459
Case: [1998] QCA 459
Decision Date: 27/08/1998

CaseChat Overview and Summary

The appeal in R v Kazakoff involved the Attorney-General challenging the adequacy of the sentence imposed on the respondent, Paul Robert Kazakoff, who had pleaded guilty to assaulting a police officer while armed and in company. The attack, which occurred on 18 January 1998, resulted in significant injuries to Constable McNamara, including a fractured nose, severe swelling, and potential long-term brain damage. Kazakoff was sentenced to two and a half years' imprisonment, with a recommendation for parole eligibility after serving 10 months. The appeal was based on the argument that the sentence was manifestly inadequate given the severity of the assault and the impact on the victim.

The legal issues before the court were whether the sentence imposed was manifestly inadequate and whether the plea of guilty warranted a lesser sentence. The court examined the circumstances of the assault, including Kazakoff's role as a leader in the attack, his use of a piece of wood as a weapon, and the significant harm caused to the police officer. The court also considered the precedent set by previous cases where assaults on police officers were met with substantial penalties.

The court found that the sentence was indeed manifestly inadequate. It noted that the assault was serious, and the respondent played a leading role in the attack. The court also highlighted the need to protect police officers acting in the course of their duty. The appeal was allowed, and the sentence was set aside. The respondent was ordered to serve a four-year imprisonment term, with the 102 days already served in presentence custody counting towards this sentence. Parole eligibility was recommended after serving 18 months. The appeal judges unanimously agreed that the original sentence was inadequate and supported the proposed new sentence and parole conditions.

Orders