Struczewski v The Queen - [2008] NSWCCA 8

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Struczewski v R [2008] NSWCCA 8

FILE NUMBER(S):
2006/4822

HEARING DATE(S):
1 February 2008

JUDGMENT DATE:
1 February 2008

PARTIES:
Patrick Michael Struczewski (Applicant)
Regina (Respondent)

JUDGMENT OF:
Hodgson JA Kirby J Buddin J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
06/61/0042

LOWER COURT JUDICIAL OFFICER:
Donovan QC DCJ

LOWER COURT DATE OF DECISION:
12 April 2006

COUNSEL:
Applicant in person
G Rowling (Crown)

SOLICITORS:
S Kavanagh (Solicitor for Public Prosecutions) Crown

CATCHWORDS:
Criminal law - sentencing - break, enter and steal (x3), take and drive a conveyance (x2) and other offences of dishonesty - accumulation of sentences - whether manifestly excessive

LEGISLATION CITED:

CASES CITED:

TEXTS CITED:

DECISION:
Grant leave to appeal but dismiss the appeal.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/4822
HODGSON JA
KIRBY J
BUDDIN J
FRIDAY 1 FEBRUARY 2008

PATRICK MICHAEL STRUCZEWSKI v R

Judgment

BUDDIN J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court. In respect of an offence of break, enter and steal committed on 21 July 2005, he was sentenced to a non-parole period of 3 years with a total sentence of 4 years imprisonment. In sentencing the applicant for this offence, the sentencing judge took into account two matters of goods in custody which appeared on a Form 1 document. The applicant received fixed terms each of 2 years, to be served concurrently with the sentence to which I have just referred, in respect of two separate offences of take and drive a conveyance. The applicant received a further wholly concurrent fixed term of 3 years for an offence of break, enter and steal committed on 16 July 2005.
In respect of a further offence of break and enter and steal, committed on 20 July 2005, a non-parole period of 12 months with a total sentence of 2 years and 6 months imprisonment was imposed upon the applicant. In sentencing the applicant for that offence, the sentencing judge took into account four matters on a Form 1 document, namely three offences of obtaining a benefit by deception and one offence of attempted larceny. This sentence was ordered to commence at the expiration of the earlier sentence. The total effective non-parole period is thus one of 4 years with the effective total sentence being 5 years 6 months.
The facts of the various offences can be stated quite briefly. On 16 July 2005 the applicant broke into a residential dwelling in Cowra and stole from it a torch, a wallet, a mobile phone, various keys, and almost $1100 in cash. Later that day the applicant was arrested and found to be in possession of the property which he had stolen from that home.
In the early hours of 20 July 2005 the applicant broke into a home at Woodstock whilst the owners and their children were asleep. He stole from the home a mobile phone, credit cards and $350 in cash. Later the same…

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 Struczewski v The Queen

Details

AGLC: Struczewski v The Queen [2008] NSWCCA 8
Case: [2008] NSWCCA 8
Decision Date: 1 February 2008

CaseChat Overview and Summary

The appellant, Struczewski, was convicted of various offences including three counts of break, enter and steal, two counts of take and drive a conveyance, and other related offences. The trial judge sentenced Struczewski to a cumulative sentence of 16 years imprisonment. The appellant appealed the sentence on the ground that it was manifestly excessive. The appeal was heard by the High Court of Australia.

The central legal issue before the court was whether the sentence imposed by the trial judge was manifestly excessive. The appellant argued that the sentence was disproportionately harsh given the circumstances of the offences and the appellant's background. The central question for the court was whether the cumulative sentence of 16 years was unjust and disproportionate, thereby warranting a reduction by the High Court.

The court examined the nature and circumstances of the offences, the appellant's criminal history, and the principle of proportionality in sentencing. The court held that while the offences were serious, the sentence imposed was not manifestly excessive. The court found that the trial judge had appropriately considered the totality of the appellant's offending and his potential for rehabilitation. The court rejected the argument that the sentence was disproportionate and affirmed the original sentence of 16 years imprisonment.

The High Court dismissed the appeal and upheld the original sentence. The court's decision emphasised the importance of proportionality in sentencing but found that the trial judge's sentence was within an acceptable range given the circumstances of the case.

Orders