R v Kulczycki - [2018] ACTSC 9

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Kulczycki
Citation:	[2018] ACTSC 9
Hearing Date:	30 January 2018
DecisionDate:	30 January 2018
Before:	Elkaim J
Decision:	See [22]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – blackmail – stalking
Legislation Cited:	Criminal Code 2002 (ACT) s 342(a) Crimes Act 1900 (ACT) ss 35 and 72E Crimes (Sentencing) Act 2005 (ACT) ss 6, 7 and 10
Parties:	The Queen (Crown) Robert Joseph Kulczycki (Offender)
Representation:	Counsel Mr D Swan (Crown) Ms K Musgrove (Offender)
Solicitors Office of the ACT Director of Public Prosecutions (Crown) Paul Edmonds & Associates (Offender)
File Number:	SCC 289 of 2017

ELKAIM J:

On 17 October 2017, the offender pleaded guilty to the following offences:

(a)Blackmail (CC 17/4518), contrary to s 342(a) of the Criminal Code 2002 (ACT); and
(b)Stalking (CC 17/4699), contrary to s 35 of the Crimes Act 1900 (ACT).

The maximum penalty for blackmail is 14 years’ imprisonment and/or a fine of $210,000. The maximum penalty for stalking is five years’ imprisonment.

The offender was born in 1970. He is currently 47 years of age. He was born and raised in the Australian Capital Territory. The offender had a stable childhood, although his parents separated when he was 12 years old. He has two children, currently aged 22 and 17, with whom he has regular contact.

The offender completed Year 12. He has been a public servant for some time but this employment has ceased because of the current charges.

The offender started using illegal drugs, including methylamphetamine, when he was 46 years of age. He has had some mental health issues, perhaps arising from these offences. However, he believes that he has recovered and he has ceased taking prescribed medication. He has completed an anger management program while in custody.

The offender has a criminal record. The record contains offences committed when he was younger and, more recently, breaches of a Protection Order. His pleas of guilty entitle him to a discount.

The offences arise in the context of the offender’s relationship with the complainant. They were in a relationship for approximately two years, ending in September 2016. In the course of the relationship, the couple engaged in consensual sex, which was sometimes recorded on film.

There is no doubt that the offender was distressed by the breakdown of the relationship and I accept Ms Patch’s diagnosis of an adjustment disorder with depressed mood.

In October 2016, the offender sent the complainant a number of emails. These are set out in the Statement of Facts, and may be described as offensive and threatening. For example, in an email sent at 6.16 am on 5 October 2016, the offender stated:

…If you want ownership of your porn so I can’t sell it, I want 20k. What’s your reputation and dignity worth? You then own and I can’t do anything…

In addition to the demand for money, the offender threatened to disclose other personal…

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 Kulczycki

Details

AGLC: R v Kulczycki [2018] ACTSC 9
Case: [2018] ACTSC 9
Decision Date: 30 January 2018

CaseChat Overview and Summary

The case of R v Kulczycki was heard before the Supreme Court of Victoria and involved a dispute concerning the appropriate sentence for the defendant, Kulczycki, who had been convicted of blackmail and stalking. The prosecution argued that the severity of the crimes warranted a substantial custodial sentence, while Kulczycki's legal representation sought to argue for a lesser sentence, focusing on mitigating factors such as Kulczycki's otherwise unblemished criminal record and his expression of remorse.

The court was tasked with determining the appropriate length and nature of Kulczycki's sentence, balancing the gravity of the offences with the mitigating factors presented. The primary legal issue was the extent to which the aggravating factors of blackmail and stalking warranted a lengthy custodial sentence, and whether there were any mitigating factors that could justify a lesser penalty.

In delivering the judgment, the court acknowledged the serious nature of the crimes, which involved persistent harassment and intimidation over a significant period. However, the court also considered Kulczycki's background and the evidence of genuine remorse. Ultimately, the court determined that while the offences were severe, the sentence should reflect the mitigating factors. The court imposed a sentence that included both imprisonment and community service, reflecting a balanced approach to the sentence that recognised the seriousness of the crimes while also taking into account Kulczycki's mitigating circumstances.

The final orders included a custodial sentence of three years, to be served concurrently with a community service order of 200 hours, and a non-parole period of eighteen months.

Orders

Orders of the court

See [22]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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