R v Waszkiewicz - [2012] QCA 22

SUPREME COURT OF QUEENSLAND

CITATION:

R v Waszkiewicz [2012] QCA 22

PARTIES:

R
v
WASZKIEWICZ, Marek Stanislaw
(applicant)

FILE NO/S:

CA No 301 of 2011
DC No 164 of 2011
DC No 356 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

24 February 2012

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2012

JUDGES:

Chief Justice, White JA, Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE – where applicant pleaded guilty to four counts of making child exploitation material, one count of possessing child exploitation material, and two counts of indecent treatment of a child under 16 – where applicant sentenced to two years imprisonment in respect of each of the counts of indecent treatment, with parole eligibility after ten months – where applicant contends that ten months was unlikely to be sufficient time to complete a sex offender treatment program – where applicant contends that the parole eligibility date was therefore illusory as parole was unlikely to be granted without completion of such a program – whether sentence ought to have been partially suspended on one offence with a long period of probation on another – whether the sentence was manifestly excessive in all the circumstances

Corrective Services Act 2006 (Qld), s 180(2)(b)
Criminal Code 1899 (Qld), s 210(1)(a), s 228B(1), s 228D
Penalties and Sentences Act 1992 (Qld), s 13(1), s 160D

R v Cunningham[2008] QCA 289, discussed
R v Lloyd[2011] QCA 12, discussed
R v Widdon[1998] QCA 166, cited

COUNSEL:

T A Ryan for the applicant
S P Vasta for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of White JA. I agree that the application should be refused, for those reasons.

WHITE JA: On 4 October 2011 the applicant pleaded guilty to four counts of making child exploitation material contrary to s 228B(1) of the Criminal Code, one count of possessing child exploitation material pursuant to s 228D of the Criminal Code and two counts of indecent treatment of a child under the age of 16 years pursuant to s 210(1)(a). He was discharged with respect to the remaining two counts on the indictment.

Sentence was adjourned and on 29 October 2011, the day of the sentencing hearing, the applicant pleaded guilty to three summary charges relating to the possession of cannabis seeds, possession of a utensil for smoking a dangerous drug and the possession of restricted items, namely, three Chinese throwing stars.

On 2 November 2011 the applicant was sentenced to 12 months imprisonment wholly suspended for an operational period of four years on counts 1 to 5 (making and…

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 Waszkiewicz

Details

AGLC: R v Waszkiewicz [2012] QCA 22
Case: [2012] QCA 22
Decision Date: 24 February 2012

CaseChat Overview and Summary

In the case of R v Waszkiewicz, the applicant appealed against his sentence following his guilty plea to four counts of making child exploitation material, one count of possessing child exploitation material, and two counts of indecent treatment of a child under 16. The applicant was sentenced to two years imprisonment for each count of indecent treatment, with parole eligibility after ten months. The applicant argued that ten months was insufficient to complete a sex offender treatment program, rendering the parole eligibility date illusory as parole would likely be withheld without program completion. The applicant further contended that the sentence ought to have been partially suspended on one offence with a long period of probation on another, and that the sentence was manifestly excessive in all the circumstances.

The court had to decide whether the sentence was manifestly excessive and whether it should have been partially suspended on one offence with a long period of probation on another. The court considered the nature and gravity of the offences, the principles of sentencing, and the need for punishment and deterrence. The court found that the sentence was not manifestly excessive as it took into account the applicant's guilty plea, the need for punishment and deterrence, and the protection of the community. The court also found that there was no basis for partially suspending the sentence on one offence with a long period of probation on another, as the offences were of a serious nature and required a significant period of imprisonment.

The application for leave to appeal was refused. The court held that the sentence was not manifestly excessive and that there was no basis for partially suspending the sentence on one offence with a long period of probation on another. The court further held that the applicant's argument regarding the parole eligibility date was speculative and did not warrant a reconsideration of the sentence. The applicant's appeal against sentence was therefore dismissed.

Orders

Orders of the court

The application for leave to appeal is 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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CITATION:	R v Waszkiewicz [2012] QCA 22
PARTIES:	R v WASZKIEWICZ, Marek Stanislaw (applicant)
FILE NO/S:	CA No 301 of 2011 DC No 164 of 2011 DC No 356 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	24 February 2012
DELIVERED AT:	Brisbane
HEARING DATE:	9 February 2012
JUDGES:	Chief Justice, White JA, Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for leave to appeal is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE – where applicant pleaded guilty to four counts of making child exploitation material, one count of possessing child exploitation material, and two counts of indecent treatment of a child under 16 – where applicant sentenced to two years imprisonment in respect of each of the counts of indecent treatment, with parole eligibility after ten months – where applicant contends that ten months was unlikely to be sufficient time to complete a sex offender treatment program – where applicant contends that the parole eligibility date was therefore illusory as parole was unlikely to be granted without completion of such a program – whether sentence ought to have been partially suspended on one offence with a long period of probation on another – whether the sentence was manifestly excessive in all the circumstances Corrective Services Act 2006 (Qld), s 180(2)(b) Criminal Code 1899 (Qld), s 210(1)(a), s 228B(1), s 228D Penalties and Sentences Act 1992 (Qld), s 13(1), s 160D R v Cunningham[2008] QCA 289, discussed R v Lloyd[2011] QCA 12, discussed R v Widdon[1998] QCA 166, cited
COUNSEL:	T A Ryan for the applicant S P Vasta for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent