R v Poskart - [2001] NSWSC 189

CITATION: R v POSKART [2001] NSWSC 189

FILE NUMBER(S): SC 97/1010

HEARING DATE(S): 7 April 2000

JUDGMENT DATE:
18 April 2001

PARTIES :

Regina
John Zbigniew POSKART

JUDGMENT OF: Hulme J at 1

COUNSEL : Crown: M Grogan
Applicant: CB Craigie

SOLICITORS: Crown: SE O'Connor
Applicant: TA Murphy

DECISION: The term of the sentence of the Court upon you is 24 years and 6 months, including a non-parole period of 18 years and 6 months, both such periods commencing on 7 July 1988.

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IN THE SUPREME COURT

OF NEW SOUTH WALES

CRIMINAL DIVISION

NO: 97/1010

Wednesday, 18 April 2001

JUDGMENT

R v John Zbigniew POSKART

1 HIS HONOUR: These remarks relate to an application, dated 20 July 1997, by John Zvigniew Poskart pursuant to Section 13A of the Sentencing Act 1989 for the substitution of minimum and additional terms of imprisonment in lieu of a life sentence. That sentence was imposed on 15 December 1989 by Campbell J in the Supreme Court following the Applicant’s conviction by a jury for the murder of one, Robert Caelli.

2 Facts as found by Campbell J were that the Applicant worked from time to time as a driver and guard for Mr Caelli, who on the evidence before his Honour was a drug dealer. The Applicant and perhaps one other decided that Mr Caelli should be killed. Discussion on the topic occurred over at least a few days. On 8 July 1986, Mr Caelli was tricked into accompanying the Applicant and 2 others on a car trip to carry out a fake drug deal. On the way the car diverted to a relatively lonely spot and there Mr Caelli was shot at least 3 times with a shot gun. It was not established that the Applicant fired the shots but, as Campbell J remarked, the jury must have been satisfied that the Applicant was criminally responsible for the firing of the shots. Campbell J also recorded in his remarks on sentence that the Applicant procured the theft of the car used and for this offence imposed a concurrent sentence of a fixed term of 2 years.

3 The circumstances were described in the Court of Criminal Appeal which, on 28 February 1992, dismissed the Applicant’s appeal against conviction as a “gangland execution”. I mention, though given the Applicant’s conviction for murder it has no relevance, that other persons who appear to have been co-offenders in the murder were either acquitted or convicted of manslaughter.

4 In his remarks on sentence Campbell J made no finding as to the motive for the killing although the Court of Criminal Appeal said that “it seems that a conclusion had been reached that (Mr Caelli) was an informer although to, by, for or upon whom was not altogether clear”. Having regard to the terms in which this statement is expressed I do not believe I would be justified in regarding that as a finding beyond reasonable doubt. Nor is there any other information…

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 Poskart

Details

AGLC: R v Poskart [2001] NSWSC 189
Case: [2001] NSWSC 189
Decision Date: 18 April 2001

CaseChat Overview and Summary

In the case of R v Poskart, the applicant, John Zbigniew Poskart, applied for a substitution of terms for a life sentence that was imposed following his conviction for the murder of Robert Caelli. The legal issues in the case centered around whether the sentence should be substituted under Section 13A of the Sentencing Act 1989, considering the nature of the crime and the applicant's behavior during imprisonment.

The court examined the severity of the offence, which was a premeditated murder with no mitigating circumstances. The applicant's lack of respect for human life and his history of criminal behavior were taken into account. The court also considered the applicant's conduct during imprisonment, including his efforts to avoid drugs and his participation in rehabilitation programs. The court found that while the applicant's behavior in prison was commendable, the heinous nature of the crime warranted a severe sentence.

The court concluded that the appropriate sentence for the murder offence was 23 years with a non-parole period of 17 years. However, considering the additional offence of being an accessory after the fact to the earlier murder, the court added an additional 18 months to the sentence. The final sentence for the murder of Robert Caelli was set at 24 years and 6 months, with a non-parole period of 18 years and 6 months, both periods commencing on 7 July 1988.

Orders