R v Staszewski - [2004] VSCA 176

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 317 of 2002

THE QUEEN
	v.
PIOTR WOJCH STASZEWSKI

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JUDGES:	CHARLES and NETTLE, JJ.A. and HANSEN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 September 2004
DATE OF JUDGMENT:	1 October 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 176

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CRIMINAL LAW – Recklessly causing injury – Conviction – Whether assaults separate incidents – Whether self defence open – Conduct of trial – Directions – Sentence – Conviction and community based order for 18 months – Whether recording of conviction meant sentence manifestly excessive – Crimes Act 1958 s.18.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.G. Hillman, S.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr A. Furstenberg (Solicitor)	Lewenberg & Lewenberg

CHARLES, J.A.:

Having read the reasons for judgment prepared by Hansen, A.J.A., I agree that the application for leave to appeal against conviction and sentence should be dismissed, for the reasons given.

NETTLE, J.A.:

I have had the advantage of reading in draft the reasons for judgment of Hansen, A.J.A.

I agree with his Honour, for the reasons that he gives, that the application for leave to appeal should be dismissed.

HANSEN, A.J.A.:

Applications for leave to appeal against conviction and sentence following a trial in the County Court. The applicant is Piotr Wojch Staszewski, now aged 32, who, together with his wife Andzelika and their children Alexandra and Eva, arrived in Melbourne from Poland on 6 January 2001.

On 16 January 2002 the applicant was committed for trial on eight charges, as follows: in relation to his wife Andzelika, having at Dandenong on 4 February 2001 intentionally caused injury and the alternative charge of recklessly causing injury, and three charges of rape on later dates in February and March 2001; and three further charges of sexual penetration of his children, one in relation to Alexandra and two in relation to Eva.

A presentment was filed in the County Court on 8 April 2002, containing eight counts set out in the order stated above. The proceeding got under way with a voir dire which commenced on 28 October 2002 at the conclusion of which, on 30 October 2002, the learned judge ordered a separate trial of the final three counts relating to

the children. The applicant was arraigned, pleaded not guilty to the five counts relating to Andzelika and the trial got under way, concluding on 7 November 2002 with a verdict of guilty on count 2 of recklessly causing injury and not guilty on each other count.

The matter was adjourned to the next day for trial of the remaining counts 6, 7 and 8. The trial was avoided as the Crown entered a nolle prosequi on each count.

On 20 November 2002 the learned judge heard a plea in mitigation. When the plea concluded the judge, contemplating a community based order, had the applicant assessed regarding his suitability for such an order and, after receiving a report on the assessment later in 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 Staszewski

Details

AGLC: R v Staszewski [2004] VSCA 176
Case: [2004] VSCA 176
Decision Date: 1 October 2004

CaseChat Overview and Summary

In the case of R v Staszewski, the defendant was charged with recklessly causing injury to another person in contravention of section 18 of the Crimes Act 1958. The case was heard in the County Court of Victoria where the defendant was convicted and sentenced to a community-based order for 18 months. The defendant appealed against both the conviction and the sentence, arguing that the trial judge had erred in law by not directing the jury that the two assaults were separate incidents, by not considering self-defence, and by giving an inadequate direction on recklessness. The defendant also argued that the recording of the conviction meant that the sentence was manifestly excessive.

The legal issues before the court were whether the trial judge had erred in law by not directing the jury that the two assaults were separate incidents, by not considering self-defence, and by giving an inadequate direction on recklessness. The court also needed to determine whether the recording of the conviction meant that the sentence was manifestly excessive. The court examined the evidence presented at trial, including the conduct of the defendant and the victim, and considered the principles of criminal law relevant to the issues raised. The court also considered the principles of sentencing relevant to the sentence imposed.

The court found that the trial judge had not erred in law in directing the jury on the issues of separate incidents, self-defence, or recklessness. The court held that the evidence supported the conclusion that the two assaults were part of a single course of conduct and that the trial judge's direction on recklessness was adequate. The court also found that the recording of the conviction did not mean that the sentence was manifestly excessive. The court held that the sentence imposed was appropriate in the circumstances of the case, taking into account the seriousness of the offence and the defendant's culpability.

The appeal was dismissed, and the conviction and sentence were upheld. The court held that the trial judge had not erred in law in directing the jury on the issues of separate incidents, self-defence, or recklessness. The court also held that the sentence imposed was appropriate in the circumstances of the case. The defendant's appeal against conviction and sentence was therefore dismissed.

Orders