R v Seirakowski - [1992] QCA 3

IN THE COURT OF APPEAL	[1992] QCA 003
SUPREME COURT OF QUEENSLAND

Appeal No. 337 of 1991

Before the Court of Appeal

Mr. Justice McPherson

Mr. Justice Pincus

Mr. Justice Thomas

BETWEEN:

THE QUEEN

AND:

PAUL JOHN SEIRAKOWSKI

(Applicant)

CATCHWORDS: CRIMINAL LAW - SENTENCE - Applicant, who had spent 4½ months in custody, sentenced to 18 months for 2 x break and enter and 1 x assault - victim was ex-girlfriend - whether distinction ought be drawn between violent incursion into premises of complete stranger and circumstances of present case.

Counsel:	Mrs. L. Clare for the Crown Mr. W. McMillan for the Applicant
Solicitors:	Director of Prosecutions for the Crown Legal Aid Office for the Applicant
Hearing Date(s):	24 February 1992

JUDGMENT - PINCUS J.A.

Delivered the Fourth day of March 1992

This is an application for leave to appeal against sentence. The applicant is a young man who pleaded guilty to three charges, two of breaking and entering a dwelling house

with intent to commit an indictable offence, and one other, unlawful assault causing bodily harm. They arose out of a series of incidents on 15 and 16 July 1991. The complainant, a woman rather older than the applicant, was, until shortly before these events, living in a flat at Greenslopes with the

applicant. They had had a relationship for a year or two. Within a few days before the offences were committed, the two

had a disagreement and the applicant was asked to leave the flat

and did so. He did not take his belongings with him. According to her version of events, she moved his clothes out on Monday,

15 July and placed them outside. She says that on that day, he

came to the flat and said "It's the police". She opened the door but left the safety chain on and he forced his way in,

breaking the chain. He abused her, she says, and threw property

about, but did not assault her.

His version of events is that he had tried to smooth

things over by telephone calls, but without success; that he

came to get his clothes on the Monday, 15 July and could not find them where he had been told they would be and became upset.

He does not appear otherwise to dispute her version of the

events of the 15th.

She says that on the following day, he came at about

9.30 am and tried to get into the flat. She told him she would

call the police and he then threw off her balcony all the pot plants that were on it; the number and value of them are

unstated. She called the police and he ran off. She says that he came back ten minutes later and threw the "rest of her

furniture" off the balcony. She says he came back a third time and kicked the rear door open, damaging it. She complains that he then came in, verbally abused her and threw her things around

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 Seirakowski

Details

AGLC: R v Seirakowski [1992] QCA 3
Case: [1992] QCA 3
Decision Date: 4/03/1992

CaseChat Overview and Summary

The case of R v Seirakowski involved an appeal against sentence brought by the applicant, Paul John Seirakowski. The applicant had pleaded guilty to three charges: two counts of breaking and entering a dwelling house with intent to commit an indictable offence, and one count of unlawful assault causing bodily harm. The offences arose from a series of incidents on 15 and 16 July 1991, where the applicant broke into the flat of his ex-girlfriend, causing damage and assaulting her. The applicant had already spent 4½ months in custody at the time of sentencing and was sentenced to an additional 18 months imprisonment. The legal issues before the Court of Appeal were whether the sentence imposed was appropriate given the nature of the offences and the applicant's history of violent behaviour.

The Court of Appeal considered the nature of the offences, which involved the applicant breaking into the flat of his former partner, an act that was influenced by his distress over the breakup of their relationship. The Court noted that while the offences were serious, there was a distinction to be made between a violent incursion into the premises of a complete stranger and the circumstances presented in this case. The Court also took into account the applicant's history of similar offences and his tendency to act violently, particularly when under the influence of alcohol. Despite these factors, the Court found the sentence to be excessive, noting that comparable cases had resulted in lower sentences.

In its judgment, the Court of Appeal allowed the application for leave to appeal and varied the sentence. The Court reduced the sentence from 18 months to 12 months imprisonment, taking into account the 4½ months already served by the applicant. The Court concluded that this sentence would adequately serve as a deterrent while also considering the mitigating factors present in the case.

Orders