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

the unit and assaulted her physically. The Crown told the

judge:

"She said he kicked her at the base of the back. In the committal I see she also said he kicked her in the chest. She fell to the ground. While she was lying on the ground he kicked her three more times about the body. She was screaming out for help".

Subsequently, she was found to have minor bruising to

her left breast, right buttock, right upper thigh and right

upper arm. When the police on the same day confronted the applicant with these matters, the complainant was present and he abused her again and said "I'll get you for this". The version of events given to the judge on behalf of the applicant does not include any denial of the assaults which I have mentioned. It

was said on his behalf that he had been drinking heavily and was suffering from the effects of that. He says, and as far as I can see it is not disputed, that the belongings which he had come to get were found by him in a rubbish bin. He says that on 16 July

1991, he came to the flat to get a letter, verifying his

separation from her, which was required so that he could obtain
a pension payment.

The applicant has a history of convictions of a similar kind. In 1981, he was convicted of a number of charges of assault and was placed on probation for 78 weeks. In 1987, he was convicted of assault by kicking and recklessly causing injury. (These convictions were all in Victoria.) A community

based order was made but that was apparently breached and he

came back before the court in 1988 and was fined $250. In 1990, he was charged with assault in company and failed to appear. In

February 1991, he was sentenced to six months imprisonment for

the assault and one month for his failure to appear. There were

also one or two other offences which do not require mention.

It is likely that the applicant is a person who has

trouble controlling his violent impulses, particularly when he

has been drinking. I notice that in 1987 it was suggested by a

court that he attend a stress management course. The assault in question was not, in itself, an extremely serious one, but the

circumstances were such as to have been likely to upset the complainant considerably. The judge was told by the Crown that she was so afraid that she had left the flat and gone into hiding.

It seems to me plain that the judge was right, in view of the applicant's record, in imposing a custodial sentence. It must be kept in mind, however, that it was not a case in which there was a breaking into premises to which the applicant was a

stranger. He broke into a flat of which he had, until a few days before, been a joint occupant and it seems obvious that these incidents were contributed to by the applicant's upset

over the break up of his relationship with the complainant. The judge imposed a sentence of 18 months imprisonment, the

applicant having already spent 4½ months in custody. It was said on the applicant's behalf that he therefore had the equivalent of 2 years and 3 months imprisonment.

The courts cannot impose sentences, in cases of this sort, on the basis that a man is free to assault any woman with whom he previously lived and such offences are to be treated seriously. On the other hand, a rational distinction can be drawn between a violent incursion into the premises of a

complete stranger and events of the sort under consideration. It does not appear to me that one can uphold this sentence, said

to be equivalent to 2 years and 3 months, without ignoring or

giving no weight to the colour given to these events by the

matters put forward by the applicant's counsel before the primary judge. I take account of the references supplied to the judge. I am inclined to think that the sentence should be

reduced from 18 months to 12 months, taking into account of course the 4½ months which had, at the date of sentencing, been spent in custody. I would propose that the application for leave to appeal be allowed and the sentence varied accordingly.

REASONS FOR JUDGMENT - THOMAS J.

Delivered the 4th day of March, 1992.

The applicant was sentenced to 18 months' imprisonment upon

two counts of breaking and entering with intent, and one count

of assault occasioning bodily harm. The applicant had already been in custody for four and a half months, so on the usual assumptions, the sentence must be regarded as equivalent to two years and three months' imprisonment.

The applicant and the complainant lived in a de facto relationship. He was a truck driver but was out of work. They were joint tenants of rented premises, but as she was employed and he was not, she was paying the rent and household accounts.

Two days before the events in question, as the result of a relatively trivial dispute he left the flat, leaving his personal belongings behind, and taking very little money with

him. He stayed overnight at St. Vincent de Paul hostel. He

attempted to make contact with the complainant on a number of occasions but she hung up. She did however indicate that his clothes and personal effects would be on the back landing. On the Monday night he arrived at the flat at about 10.00 p.m. to

collect his belongings but they were not on the landing. He admits he became "quite frantic". The complainant told him she was going to call the police. Sometime after he tricked her into opening the door by pretending to be the police. When the

door was ajar he broke the safety chain and went inside, on his account to regain his possessions. They were not inside, and on his account he found them later in a rubbish bin outside. No

physical abuse of the complainant is alleged on this occasion

although she says that he verbally abused her, threw property
around the house and that he took away the T.V. controller.

This was the subject of the first count of breaking and entering with intent. The circumstances can hardly be regarded as a serious example of the offence.

The second and third counts are more serious, they relate

to the following day. On his account he was quite distressed by

the occasion of the night before and he drank to excess. He had

no funds so he went to the Social Security Department but they informed him that he would need a letter to show that he was no

longer residing with the complainant. He says that his return

to the premises was with a view to obtaining such a letter from

the complainant. However his version of events thereafter does

not effectively contradict the account given by the Crown, as in

most respects he claims that he does not recall the details.

On the Crown version, at about 9.30 a.m. he appeared on the

back landing and threw pot plants down to the ground before

running off. Ten minutes later he returned and threw items of furniture from the landing to the ground. He again left.

Fifteen minutes later he again returned, and this time kicked

the door open making a large hole in the door. He assaulted the

complainant, kicking her in various parts of the body including a number of kicks whilst she was lying on the floor. He looked for money, unsuccessfully, and left. The police found him

nearby at the Social Security office. He was highly agitated
and abused the complainant whilst in police custody.

His criminal history unfortunately reveals a number of convictions for violence including two charges of wilful damage, assault occasioning bodily harm, two charges of assault with a weapon and three charges of unlawful assault in 1981 (when he was 15); assault by kicking and recklessly causing injury in 1987 (when he was 21); assault by kicking recklessly causing

injury in 1988; unlawful assault and assault in company in April 1990. On the last occasion he was sentenced to six months'

imprisonment in February 1991, and he had not long been out of

prison before coming to Queensland where the present events soon

transpired.

The cases referred to by counsel are not directly comparable, although they afford circumstances said to be of at least equal severity, and reveal appreciably lower sentences

than that imposed here. R. v. Hadley Ex parte Attorney General

(C.A. 130 of 1991, 1st August, 1991) concerns an assault upon a

taxi driver. The circumstances were quite serious and certainly

more harm was caused to the taxi driver than was caused to the complainant in the present case. The Court of Criminal Appeal set aside a probation order and imposed a sentence of 15 months' imprisonment. I do not think that Hadley's case should be

regarded as setting a tariff for offences of violence and perhaps it reflects an attempt to give some effect to the

moderate view taken by the sentencing judge. The only other example given was R. v. Hearn Ex parte Attorney-General (C.A. 153 of 1991, 27th August, 1991). In that case a 35 year old man

seriously assaulted his de facto wife by striking her a number of times with a knife sharpening steel. He was intoxicated at the time. She suffered bruising to the left wrist, laceration

to the right shin (requiring suturing), laceration to the left

cheek (requiring suturing) and lacerations to the skull and cheek area which also required suturing. They had lived together for 17 years and she returned to live with him. Like

the present applicant Hearn had a bad history of violence

including five convictions of assaulting police, four of aggravated assault on a female, four of assault occasioning bodily harm and one of grievous bodily harm (although it was not

a serious example of that offence). He had already served two months' imprisonment, and was sentenced to a further 12 months.

The Court of Criminal Appeal seems to have regarded this at the

lower end of the available range. Derrington J. commented that

he thought the range would extend to imprisonment up to 18

months on top of the two months he had already served. Even so, this suggests that the top range for that offence was thought to

be less than two years. Whilst not suggesting that Hearn is

indistinguishable, it bears a number of significantly similar

features with the present matter. It is true that the

complainant forgave him, and did not remain in fear of him. On the other hand the violence was greater and the injuries more serious.

I have fluctuated in my view of the present case but in the end consider that the sentence was excessive. No case has been brought forward that supports the present sentence as being

within an acceptable range, and those that have been cited suggest it was too high. Obviously a serious and effective deterrent needed to be brought home to the applicant. This will

be adequately achieved by a sentence the effect of which, on top

of the four and a half months already served, will be comparable to a sentence of one year and nine months. The sentence that

will achieve this will be one of 12 months' imprisonment.