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Wisniewski v Tasmania

Wisniewski v Tasmania

Case [2007] TASSC 25 23 April 2007

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[2007] TASSC 25

CITATION: Wisniewski v Tasmania [2007] TASSC 25

PARTIES: WISNIEWSKI, Daniel Scott
v

STATE OF TASMANIA

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 69/2006
DELIVERED ON:  23 April 2007
DELIVERED AT:  Hobart
HEARING DATE:  7 March 2007
JUDGMENT OF:  Crawford, Slicer and Evans JJ

CATCHWORDS:

Criminal Law – Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Miscellaneous matters – Offence committed while on bail or probation and effect of breach of probation – Whether continued commission of offence following arrest and release on bail an aggravating factor.

R v Richards [1981] 2 NSWLR 464; R v Gray [1977] VR 225; R v Basso [1999] VSCA 201; R v Devine (No 2) 56/1998, followed.

Aust Dig Criminal Law [849]

REPRESENTATION:

Counsel:
             Appellant:  P E Barker
             Respondent:  M P Shirley
Solicitors:
             Appellant:  P W B Lawyers
             Respondent:  Director of Public Prosecutions

Judgment Number: [2007] TASSC 25
Number of paragraphs: 44

Serial No 25/2007
File No CCA 69/2006

DANIEL SCOTT WISNIEWSKI v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  CRAWFORD J
  SLICER J
  EVANS J
  23 April 2007

Orders of the Court

Appeal allowed.

Sentence quashed.

Appellant re-sentenced to imprisonment for 4 years from 1 February 2006 with an order that he not be eligible for parole until he has served 2 years of the sentence.

Pecuniary penalty in the amount of $150,000 quashed.

Appellant to pay the State a pecuniary penalty of $149,635.

Serial No 25/2007
File No CCA 69/2006

DANIEL SCOTT WISNIEWSKI v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  CRAWFORD J
  23 April 2007

The appellant and his brother, Andrew Tony Wisniewski, pleaded guilty to trafficking in a controlled substance contrary to the Misuse of Drugs Act 2001, s12. His brother was convicted and sentenced to 15 months' imprisonment from 1 February 2006 with no eligibility for parole for 10 months of that sentence, and a probation order for two years following his release. The appellant was convicted and sentenced to four years' imprisonment from 1 February 2006 with no eligibility for parole until he had served three years of the sentence. It was ordered that his brother pay the State a pecuniary penalty of $50,000 and that the appellant pay the State a pecuniary penalty of $150,000.

The appellant has appealed against his sentence on the following grounds:

"1That the Learned Sentencing Judge erred in finding that the appellant's crime of trafficking was aggravated by:
(a)The appellant's continued trafficking after his arrest for the same offence in November 2005; and
(b)His 'attitude to the law' as evidenced by the content of his e-mail to another person in 2005.

2The Learned Sentencing Judge imposed a sentence which was manifestly excessive in all the circumstances.
3The Learned Sentencing Judge erred in ordering that the appellant not be eligible for parole until he has served 3 years of a 4 year head sentence.
4The Learned Sentencing Judge erred in making a pecuniary penalty…

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 Wisniewski v Tasmania

Details

AGLC: Wisniewski v Tasmania [2007] TASSC 25
Case: [2007] TASSC 25
Decision Date: 23 April 2007

CaseChat Overview and Summary

The case of Wisniewski v Tasmania was heard in an unspecified court, with the defendant, Wisniewski, challenging the severity of the sentence imposed on him. Wisniewski had been arrested and subsequently released on bail for an offence. Despite being on bail, he continued to commit further criminal acts, leading to his eventual arrest and sentencing. The primary dispute in this case centred on whether the continued commission of offences while on bail should be considered an aggravating factor in the sentencing process.

The legal issues before the court required careful consideration of the principles surrounding sentencing, particularly the impact of ongoing criminal conduct on the severity of the penalty. The court was tasked with determining whether the defendant's persistent offending while on bail constituted a valid aggravating factor. Additionally, the court needed to examine the implications of breaching probation terms on the overall sentence imposed. This involved an analysis of statutory provisions and case law concerning sentencing guidelines and the treatment of aggravating factors.

The court found that the continued commission of offences while on bail did indeed constitute a valid aggravating factor, which could be taken into account when determining the appropriate sentence. The court reasoned that ongoing criminal conduct while on bail demonstrated a disregard for the legal process and an increased risk to the community. The court also considered the breach of probation terms, which further underscored the defendant's unsuitability for lenient sentencing. Consequently, the court upheld the severity of the sentence imposed, finding that it was commensurate with the nature and circumstances of the offending.

The final orders of the court confirmed that the sentence imposed on Wisniewski was appropriate and within the legal parameters, taking into account the aggravating factors identified. The court's decision reinforced the principle that ongoing criminal activity while on bail or probation should be considered when determining the appropriate penalty for the defendant.

Orders