R v Kolodziej - [2008] QCA 184

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kolodziej [2008] QCA 184

PARTIES:

R
v
KOLODZIEJ, Christopher David
(applicant/appellant)

FILE NO/S:

CA No 341 of 2007
DC No 3247 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

11 July 2008

DELIVERED AT:

Brisbane

HEARING DATE:

31 March 2008

JUDGES:

Muir JA, Fryberg and Lyons JJ
Separate reasons for judgment of each member of the Court, Muir JA and Lyons J concurring as to the orders made,
Fryberg J dissenting

ORDERS:

1. Allow the appeal
2. Set aside the sentences imposed

3. Impose a sentence of imprisonment of 18 months fully suspended for an operational period of 18 months in relation to count 1

4. Convict but not further punish in relation to count 2

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OTHER OFFENCES – where applicant pleaded guilty to one count of robbery in company and one count of wilfully and unlawfully damaging a taxi cab – sentenced to two years imprisonment for robbery and 12 months imprisonment for wilful damage – both periods of imprisonment wholly suspended for an operational period of two and a half years – ordered to pay $1000 compensation within three months – persistent course of threatening and intimidating conduct towards the taxi driver – the acts were not pre-meditated – both offenders were inebriated – no actual violence inflicted on the complainant and no weapons used – co-operation with police and full admissions – genuine remorse – both counts involved the ‘same act or omission’ – whether sentencing judge punished twice for same offence – sentence manifestly excessive

Criminal Code 1899 (Qld), s 16, s 409, s 411, s 469

Pearce v The Queen (1998) 194 CLR 610 at 623; [1998] HCA 57, cited
R v Briody (2002) 134 A Crim R 170; [2002] QCA 364, cited
R v Bush [1996] ACL Rep 130 Qld 212; [1996] QCA 172, cited
R v El Hassan [1995] ACL Rep 130 Qld 74; [1994] QCA 591, cited
R v Elhusseini [1988] 2 Qd R 442, followed/applied
R v Monday [2001] ACL Rep 130 Qld 32; [2000] QCA 491, cited

COUNSEL:

P J Davis SC for the applicant/appellant
M R Byrne for the respondent

SOLICITORS:

Ryan & Bosscher Lawyers for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

MUIR J: I have had the opportunity of perusing the reasons for judgment of Lyons J. I gratefully adopt her Honour’s discussion of the facts, her analysis of comparable sentences and her conclusion in respect of the nature and gravity of the applicant’s conduct.

Having regard, in particular, to the approach taken by counsel for the applicant and the respondent I concur in Lyons J’s conclusions in relation to the late surfacing question of double punishment. I note that…

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 Kolodziej

Details

AGLC: R v Kolodziej [2008] QCA 184
Case: [2008] QCA 184
Decision Date: 11 July 2008

CaseChat Overview and Summary

The appellants, Kolodziej and their co-accused, were convicted in the County Court of Victoria for robbery in company and wilfully and unlawfully damaging a taxi cab. The court was tasked with deciding whether the sentences imposed by the sentencing judge were manifestly excessive and whether the sentences for both offences should be considered as one. The appellants argued that the sentences were excessively harsh and that the offences should be treated as one due to their simultaneous occurrence. The court considered the nature and circumstances of the offences, the conduct of the appellants, and the principles of sentencing.

The court found that the sentences imposed were manifestly excessive, considering the circumstances of the case. The court noted that the appellants had not pre-meditated the acts, were inebriated at the time, and had shown genuine remorse and co-operated with the police. The court further found that both counts involved the same act or omission, and thus, the sentencing judge had punished twice for the same offence. The court concluded that the sentences should be set aside and replaced with a more appropriate sentence that reflected the nature and circumstances of the offences.

In light of the findings, the court allowed the appeal, set aside the sentences imposed, and imposed a sentence of imprisonment of 18 months fully suspended for an operational period of 18 months in relation to count 1. The court convicted but did not further punish in relation to count 2, as it was found to be part of the same act or omission as count 1. The court's decision provides guidance on the appropriate approach to sentencing in cases where multiple offences are committed as part of the same act or omission.

Orders

Orders of the court

1. Allow the appeal

2. Set aside the sentences imposed

3. Impose a sentence of imprisonment of 18 months fully suspended for an operational period of 18 months in relation to count 1

4. Convict but not further punish in relation to count 2

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Kolodziej [2008] QCA 184
PARTIES:	R v KOLODZIEJ, Christopher David (applicant/appellant)
FILE NO/S:	CA No 341 of 2007 DC No 3247 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	11 July 2008
DELIVERED AT:	Brisbane
HEARING DATE:	31 March 2008
JUDGES:	Muir JA, Fryberg and Lyons JJ Separate reasons for judgment of each member of the Court, Muir JA and Lyons J concurring as to the orders made, Fryberg J dissenting
ORDERS:	1. Allow the appeal 2. Set aside the sentences imposed 3. Impose a sentence of imprisonment of 18 months fully suspended for an operational period of 18 months in relation to count 1 4. Convict but not further punish in relation to count 2
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OTHER OFFENCES – where applicant pleaded guilty to one count of robbery in company and one count of wilfully and unlawfully damaging a taxi cab – sentenced to two years imprisonment for robbery and 12 months imprisonment for wilful damage – both periods of imprisonment wholly suspended for an operational period of two and a half years – ordered to pay $1000 compensation within three months – persistent course of threatening and intimidating conduct towards the taxi driver – the acts were not pre-meditated – both offenders were inebriated – no actual violence inflicted on the complainant and no weapons used – co-operation with police and full admissions – genuine remorse – both counts involved the ‘same act or omission’ – whether sentencing judge punished twice for same offence – sentence manifestly excessive Criminal Code 1899 (Qld), s 16, s 409, s 411, s 469 Pearce v The Queen (1998) 194 CLR 610 at 623; [1998] HCA 57, cited R v Briody (2002) 134 A Crim R 170; [2002] QCA 364, cited R v Bush [1996] ACL Rep 130 Qld 212; [1996] QCA 172, cited R v El Hassan [1995] ACL Rep 130 Qld 74; [1994] QCA 591, cited R v Elhusseini [1988] 2 Qd R 442, followed/applied R v Monday [2001] ACL Rep 130 Qld 32; [2000] QCA 491, cited
COUNSEL:	P J Davis SC for the applicant/appellant M R Byrne for the respondent
SOLICITORS:	Ryan & Bosscher Lawyers for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent