Raczkowski v Regina - [2008] NSWCCA 152

New South Wales
Court of Criminal Appeal

CITATION: Raczkowski v Regina [2008] NSWCCA 152

HEARING DATE(S): 24 June 2008

JUDGMENT DATE:
4 July 2008

JUDGMENT OF: Bell JA at 1; Grove J at 2; Latham J at 53

DECISION: Appeal allowed
Sentences imposed in District Court quashed
Resentenced (see par 52)

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Multiple offences by husband on estranged wife - Breach of current ADVO - Use of firearm - Sentence - Observation of possible ambiguity where standard non-parole period applies to offence against provision by section number and statute declares same penalty for attempt but determination not required - Error in applying apparently intended concurrency - Appropriate to adjust sentence commencement dates

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986

CATEGORY: Principal judgment

CASES CITED: Hiron v R [2007] NSWCCA 336
Itaoui v R [2005] 158 A Crim R 233
R v Brown [2004] NSWCCA 249
R v Burton [2008] NSWCCA 128
R v Dunn [2004] 144 A Crim R 180
R v Edigarov [2001] 125 A Crim R 551
R v Hamid [2006] 164 A Crim R 179

TEXTS CITED:

PARTIES: Ted RACZKOWSKI - Applicant
REGINA - Respondent/Crown

FILE NUMBER(S): CCA 2007/00004595

COUNSEL: W Dawe QC - Applicant
J Girdham - Respondent/Crown

SOLICITORS: F McGowan - Applicant
Solicitor for Public Prosecutions - Respondent/Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/31/0181

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

LOWER COURT DATE OF DECISION: 28/09/07

CCA 2007/00004595

BELL JA
GROVE J
LATHAM J
4 July 2008

Ted RACZKOWSKI v REGINA

Judgment

1 BELL JA: I agree with Grove J.

2 GROVE J: This is an application for leave to appeal against sentence imposed in the District Court. In order to give appropriate context it is desirable to recount some of the circumstances. The victim was the applicant’s wife. They had been together for over 40 years, however the relationship had deteriorated and in April 2004 at Parramatta Local Court an apprehended domestic violence order (ADVO) was issued against the applicant for the protection of his wife. That order did not restrict their continuing to share the premises which had been their matrimonial home.

3 However, on 31 December 2004 the applicant was charged with two counts of common assault and three counts of contravening the ADVO. He was bailed on conditions which included not approaching or contacting his wife or being within 500 metres of the premises where they had both formerly resided. Despite these conditions the applicant wrote a number of letters to her, two of which were delivered by a family member and others were found by the victim left in and about the house.

4 On Thursday evening 27 January 2005 the applicant’s wife attended a birthday celebration at the house of a friend in a nearby suburb. She arrived home shortly after 9 pm. She found that there had been left an old letter from the applicant together with a packet of…

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 Raczkowski v Regina

Details

AGLC: Raczkowski v Regina [2008] NSWCCA 152
Case: [2008] NSWCCA 152
Decision Date: 4 July 2008

CaseChat Overview and Summary

The matter of Raczkowski v Regina involved the defendant who was convicted of multiple offences against his estranged wife. These included stalking, assaulting her, and contravening an Apprehended Domestic Violence Order (ADVO). The defendant also possessed a firearm during the commission of these offences. The case was heard in the High Court of Australia, which was asked to review the sentence imposed by the lower court.

The court was required to determine whether the trial judge had erred in calculating the sentence. Specifically, the court examined whether the judge correctly applied the non-parole period and whether the sentences for the various offences should have run concurrently. There was also a question about whether there was an ambiguity in the statutory provisions that led to an error in the sentence calculation.

In delivering the judgment, the court found that there was indeed an error in the trial judge's application of the sentencing principles. The ambiguity in the statutory provisions did not necessitate a determination of the penalty for the attempt, as the standard non-parole period applied to the offence against the provision by section number and statute declared the same penalty for the attempt. The court also found that the trial judge should have intended concurrency in the sentences for the various offences. Consequently, the High Court adjusted the sentence commencement dates to reflect the appropriate application of concurrent sentencing principles. The court's decision led to a modification in the commencement dates of the defendant's sentences, ensuring they ran concurrently as intended.

Orders