R v Kowalczyk

[2021] QCA 154

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kowalczyk [2021] QCA 154

PARTIES:

R
v
KOWALCZYK, Paul Michael
(applicant)

FILE NO/S:

CA No 244 of 2020
DC No 1885 of 2020
DC No 2093 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 19 October 2020 (Clare SC DCJ)

DELIVERED ON:

27 July 2021

DELIVERED AT:

Brisbane

HEARING DATE:

21 July 2021

JUDGES:

Sofronoff P and McMurdo JA and Applegarth J

ORDERS:

1.   Grant leave to appeal.

2.   Allow the appeal.

3.   Set aside the order for imprisonment imposed on 19 October 2020 for the charge upon the indictment.

4.   Order that a conviction be recorded on that charge but that the applicant not be further punished.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to assaulting his wife and breaching a domestic violence Protection Order – where the applicant’s spousal visa was cancelled – where the applicant had spent 298 days in custody on remand – where the applicant was released on bail and then subsequently put into immigration detention – where the sentencing judge declared 300 days as time served in custody – where the sentencing judge sentenced the applicant to 300 days imprisonment – whether the sentencing judge was required to set a parole eligibility date – whether the sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to assaulting his wife and breaching a domestic violence protection order – where the assault involved the applicant grabbing his wife by the neck and covering her mouth – whether the sentencing judge erred in recording a conviction

Penalties and Sentences Act 1992 (Qld), s 12, s 12A, s 159A, s 160B, s 160C, s 160D, s 160G

COUNSEL:

C R Smith for the applicant
S L Dennis for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. SOFRONOFF P:  I agree with the reasons of McMurdo JA and with the orders proposed.

2. McMURDO JA:  The applicant was convicted, on his pleas of guilty, of two offences which were committed in the same incident against his wife.  There was an offence of assaulting her (which was a domestic violence offence[1]) and an offence of contravening a domestic violence order.  The incident occurred on 17 October 2019 and on the following day, he was arrested and charged.  He was on remand from then until 10 August 2020, when he was released on bail after spending 298 days in prison.  From then, he was held in immigration detention.

   [1]As defined in the Criminal Code, s 1.

3. He was sentenced on 19 October 2020.  For the assault offences, he was ordered to serve a term of imprisonment of 300 days, and, at…