Siemek v The Queen - [2017] NSWCCA 18

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Siemek v R [2017] NSWCCA 18
Hearing dates: 2 February 2017
Date of orders: 01 March 2017
Decision date: 01 March 2017
Before: Basten JA at [1];
Johnson J at [2];
Button J at [84]
Decision:
Leave to appeal against sentence refused.

Catchwords: CRIMINAL LAW - sentence - domestic violence offences - offence of recklessly causing grievous bodily harm against Applicant’s former wife - Applicant subject to conditional liberty at time for separate assault against a different former partner - Applicant with mental health issues - history of domestic violence against former wife and former partner - claim of error in approach to breach of conditional liberty - claim of error in approach to accumulation of sentences - claim that total effective sentence manifestly excessive - no error demonstrated - leave to appeal refused
Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Procedure Act 1986
Cases Cited:
Browning v R [2015] NSWCCA 147
Director of Public Prosecutions (NSW) v Cooke (2007) 168 A Crim R 379; [2007] NSWCA 2
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Porter v R [2008] NSWCCA 145
R v Dinh (2010) 199 A Crim R 573 [2010] NSWCCA 74
R v Gommeson (2014) 243 A Crim R 534; [2014] NSWCCA 159
R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302
Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
Texts Cited: ---
Category: Principal judgment
Parties: Justin Karl Siemek (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr CP O’Donnell SC
Ms N Williams (Respondent)
Solicitors:
Swifte Law (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/8613
Decision under appeal

Court or tribunal:

District Court of New South Wales

Date of Decision:

4 March 2016

Before:

Hock DCJ

File Number(s):

2015/8613

Judgment

BASTEN JA: Leave to appeal against the sentences imposed on the applicant in the District Court should be refused for the reasons given by Johnson J.
JOHNSON J: The Applicant, Justin Karl Siemek, seeks leave to appeal against sentences imposed by Hock DCJ at the Newcastle District Court on 4 March 2016 for offences committed by the Applicant on 10 January 2015.
Following a plea of guilty to an offence of recklessly causing grievous bodily harm under s 35(2)(a) Crimes Act 1900 (NSW), the Applicant was sentenced to imprisonment for three years and nine months with a non-parole period of two years commencing on 10 July 2015. The maximum penalty for an offence under s 35(2) is imprisonment for 10 years with a standard non-parole period of four years applying to the offence.
At the same time, the Applicant was sentenced for a further offence (on a certificate under s 166 Criminal Procedure Act (1986) (NSW)) of contravening a prohibition specified in an apprehended domestic violence order, contrary to s.14(1) Crimes (Domestic and Personal Violence) Act

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 Siemek v The Queen

Details

AGLC: Siemek v The Queen [2017] NSWCCA 18
Case: [2017] NSWCCA 18
Decision Date: 01 March 2017

CaseChat Overview and Summary

The Applicant, Mr Siemek, appealed against his sentence in the Supreme Court of Victoria, Criminal Division. The appeal arose from a conviction for recklessly causing grievous bodily harm to his former wife. The Applicant was subject to conditional liberty for a separate assault against a different former partner at the time of the offence. The Applicant had a history of mental health issues and domestic violence. The appeal raised claims of error in the approach to the breach of conditional liberty, the accumulation of sentences, and the claim that the total effective sentence was manifestly excessive.

The court considered the Applicant's history of domestic violence and mental health issues but found no error in the approach to the breach of conditional liberty. The court noted that the Applicant had a pattern of violent behaviour and had failed to comply with the conditions of his conditional liberty, which warranted a custodial sentence. The court also found no error in the approach to the accumulation of sentences. The court considered the totality of the Applicant's offending history and found that the sentences imposed were proportionate to the seriousness of the offences. The court rejected the claim that the total effective sentence was manifestly excessive.

The Applicant's appeal was dismissed, and leave to appeal to the Court of Appeal was refused. The court found that the sentence imposed was appropriate and proportionate to the Applicant's offending history and the seriousness of the offences. The court rejected the claims of error and found that the sentence was just and appropriate in the circumstances.

Orders