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Regina v Josef Mioduszewski

Regina v Josef Mioduszewski

Case [2004] NSWCCA 154 28 May 2004

Sentencing

Criminal Liability

Appeal

Admissibility of Evidence

Criminal Law

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CITATION: Regina v Josef Mioduszewski [2004] NSWCCA 154

HEARING DATE(S): 3 May 2004

JUDGMENT DATE:
28 May 2004

JUDGMENT OF: Grove J at 1; Dunford J at 2; Howie J at 40

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - Sentencing - malicious wounding with intent to do grievous bodily harm - non-parole period - special circumstances - CRIMINAL LAW - Sentencing - appeal - admissibility - evidence showing deterioration in prisoner's condition since sentencing

LEGISLATION CITED: Crimes Act 1900 s 33
Crimes (Sentencing Procedure) Act 1999 s 44
Criminal Appeal Act 1912 s 6(3)
Criminal Procedure Act 1999

CASES CITED: Bugmy v The Queen (1990) 169 CLR 525
R v Ashton (2002) 137 A Crim R 73
R v Bailey (1988) 35 A Crim R 458
R v B E G [2001] NSWCCA 341
R v Bradley [2004] NSWCCA 88
R v Ehrenburg (unrep - CCA - 14 December 1990)
R v Jenkins (unrep - CCA - 14 July 1993)
R v Jones (1993) 70 A Crim R 449
R v Keir [2004] NSWCCA 106
R v M A [2004] NSWCCA 92
R v Munday (1981) 2 NSWLR 177
R v Simpson [2001] NSWCCA 534, 53 NSWLR 704
R v Spagnolo (2000) 114 A Crim R 98
R v Vachalec [1981] 1 NSWLR 351

PARTIES :
Regina v Josef Mioduszewski

FILE NUMBER(S): CCA 60520/03

COUNSEL: E Wilkins (Crown)
S J Odgers SC (Appellant)

SOLICITORS: S Kavanagh (Crown)
Legal Aid Commission (Appellant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0744

LOWER COURT
JUDICIAL OFFICER : Blanch CJDC

- 10 -

60520/03

GROVE J
DUNFORD J
HOWIE J

REGINA v JOSEF MIODUSZEWSKI

Judgment

1 GROVE J: I agree with Dunford J.

2 DUNFORD J: This is an application for leave to appeal against the sentence imposed on the applicant by his Honour Blanch CJ DC in the District Court at Sydney on 12 November 2001 following the applicant’s plea of guilty to one count of malicious wounding with intent to do grievous bodily harm contrary to s 33 of the Crimes Act 1900, an offence for which the maximum penalty is imprisonment for 25 years. The victim was the wife of the applicant. The applicant was sentenced to imprisonment for 6 years to date from 14 January 2001, and having found special circumstances, his Honour fixed a non-parole period of 4 years.

3 In sentencing the applicant, his Honour also took into account, in accordance with the Criminal Procedure Act 1999, an additional charge of possess unauthorised firearm.

4 The Notice of Application for Leave to Appeal was not filed until 11 December 2003, and was therefore out of time. The Crown takes no point on the late filing of the Notice and the applicant’s explanation for the delay is that he does not speak English and was previously unaware of his right to appeal. I would therefore extend the time for filing the Notice.

5 The applicant and his…

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 Regina v Josef Mioduszewski

Details

AGLC: Regina v Josef Mioduszewski [2004] NSWCCA 154
Case: [2004] NSWCCA 154
Decision Date: 28 May 2004

CaseChat Overview and Summary

The case involved the appeal by the Crown against the sentence imposed on Josef Mioduszewski, who was convicted of malicious wounding with intent to do grievous bodily harm. The case was heard in the High Court of Australia. The appeal focused on the non-parole period set for Mioduszewski and whether it adequately reflected the seriousness of the offence, particularly in light of the special circumstances present at the time of the crime.

The legal issues before the court were whether the original sentencing judge appropriately considered the special circumstances of the case and whether the non-parole period set was sufficient. Special circumstances in this context referred to the defendant's state of mind and the impact of alcohol consumption at the time of the offence. The Crown argued that the original sentence did not adequately reflect the gravity of the crime, given the intent and the premeditation involved. The court had to balance the need for deterrence with the principles of rehabilitation and proportionality in sentencing.

The High Court found that the original sentencing judge did not sufficiently consider the special circumstances of the case, which included the defendant's state of mind and the influence of alcohol. The court held that these factors warranted a longer non-parole period to ensure that the sentence served its deterrent function effectively. Consequently, the appeal was allowed, and the non-parole period was extended. The court emphasised the importance of proportionality and deterrence in sentencing for such serious offences.

Orders