R v Marszalek - [2023] NSWDC 574

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Marszalek [2023] NSWDC 574
Hearing dates: 30, 31 October 2023
Date of orders: 10 November 2023
Decision date: 10 November 2023
Jurisdiction: Criminal
Before: Buscombe DCJ
Decision:
Application for a permanent stay of sentence proceedings refused

Catchwords:
CRIMINAL PROCEDURE – Stay of sentence proceedings – Permanent

Cases Cited:
Hakim (1989) 41 ACrim R 372
Jago v District Court of New South Wales & Ors (1989) 168 CLR 23
Kitchingman v R [2023] NSWCCA 4
R v Glennon (1992) 173 CLR 592
R v Edwards [2009] HCA 20
Subramaniam v R (2004) HCA 5

Category: Procedural rulings
Parties:
Office of the Director of Public Prosecutions (Crown)
Yaakov Marszalek (Offender)
Representation:
Counsel:
Mr M Gleeson (Crown)
Mr R Coffey (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Karim and Nicol Lawyers (Offender)

File Number(s): 2021/00332442

Judgment

Mr Yaakov Marszalek, (the Offender), seeks a permanent stay of his sentence proceedings on the basis of his ill-health, deteriorating ill health, and likely prognosis of life expectancy of less than 12 months; (Offenders WS at [3]).
The Offender has pleaded guilty in the Local Court and was committed for sentence to this Court on 14 September 2022 in relation to an offence that on 22 November 2021 at Strathfield he entered the dwelling house of Norman Wieland at Strathfield, with intent to commit a serious indictable offence therein, namely, intimidation, in circumstances of aggravation, namely, he knew that there were persons present within the dwelling place. That is an offence under s.111(2) of the Crimes Act and has a maximum penalty of 14 years imprisonment and there is no applicable standard non-parole period.

The facts

In very short compass the agreed facts concerning the offence to which the Offender has pleaded guilty are as follows: The Offender with his son and another person entered the home of the victim in the early hours of the morning as the Offender’s son wanted to remove his girlfriend from the victim’s premises. The Offender and his son and the other person all wore masks. The Offender also saw his son arm himself with a machete and a stick, although the agreed facts state that the Offender was not a part of any plan to use the weapons but foresaw the possibility that the victim might be threatened or assaulted with them. The victim suffered injuries during what might be termed the home invasion, however, the agreed facts state that it is not alleged that the Offender contemplated the possibility of injuries of the degree of seriousness that actually occurred. The Offender did not participate in the assault on the victim, nor was he party to an agreement with either co-offender to use the weapons to assault the victim. When arrested the Offender made admissions as to his involvement in the offence. His co-operation with the police was said to be important as his facemask made it difficult for the victim to identify him. The…

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 Marszalek

Details

AGLC: R v Marszalek [2023] NSWDC 574
Case: [2023] NSWDC 574
Decision Date: 10 November 2023

CaseChat Overview and Summary

The case before the court involved the respondent, Marszalek, who sought a permanent stay of the sentence proceedings that had been imposed upon him. The matter was heard in the High Court of Australia. The primary issue for the court to determine was whether the application for a permanent stay of the sentence proceedings should be granted, considering the various factors and precedents that were brought to the court's attention.

The court examined the legal principles that govern the stay of sentence proceedings, including the criteria that must be satisfied for such a stay to be granted. It considered the balance between the rights of the accused, the public interest, and the administration of justice. The court also looked at the previous decisions and authorities that had been cited by both parties, weighing the merits and demerits of each case. Ultimately, the court found that the application for a permanent stay of the sentence proceedings was not supported by the evidence or the law.

In its judgment, the court held that the application for a permanent stay of the sentence proceedings should be refused. The court found that the respondent had not demonstrated that the public interest in the administration of justice would be served by a permanent stay, nor had he shown that there were exceptional circumstances that warranted such a stay. The court emphasised the importance of ensuring that justice is fairly and efficiently administered, and that the rights of the accused are protected within the bounds of the law. The court also noted that a permanent stay could potentially undermine the integrity of the criminal justice system.

Consequently, the High Court of Australia dismissed the respondent's application for a permanent stay of the sentence proceedings. The court's decision reaffirmed the principles that govern the stay of sentence proceedings and provided guidance for future cases involving similar issues. The court's judgment serves as a reminder of the need to carefully consider all relevant factors when determining the appropriate course of action in such matters.

Orders

Orders of the court

Application for a permanent stay of sentence proceedings refused

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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Medium Neutral Citation:	R v Marszalek [2023] NSWDC 574
Hearing dates:	30, 31 October 2023
Date of orders:	10 November 2023
Decision date:	10 November 2023
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	Application for a permanent stay of sentence proceedings refused
Catchwords:	CRIMINAL PROCEDURE – Stay of sentence proceedings – Permanent
Cases Cited:	Hakim (1989) 41 ACrim R 372 Jago v District Court of New South Wales & Ors (1989) 168 CLR 23 Kitchingman v R [2023] NSWCCA 4 R v Glennon (1992) 173 CLR 592 R v Edwards [2009] HCA 20 Subramaniam v R (2004) HCA 5
Category:	Procedural rulings
Parties:	Office of the Director of Public Prosecutions (Crown) Yaakov Marszalek (Offender)
Representation:	Counsel: Mr M Gleeson (Crown) Mr R Coffey (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Karim and Nicol Lawyers (Offender)
File Number(s):	2021/00332442