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Court of Criminal Appeal 28 May 2004

Regina v Josef Mioduszewski

[2004] NSWCCA 154

Assault & violenceFirearms & weapons
CRIMINAL LAW SENTENCING NON PAROLE PERIOD SPECIAL CIRCUMSTANCES CRIMINAL LAW

Citation: Regina v Josef Mioduszewski [2004] NSWCCA 154
Court: NSW Court of Criminal Appeal
Date: 28 May 2004
Judge(s): Grove J, Dunford J, Howie J

Background

The appellant, a Polish-born man aged 70 at the time of sentencing, pleaded guilty in the District Court to malicious wounding with intent to cause grievous bodily harm under s 33 of the Crimes Act 1900. The offence carried a maximum penalty of 25 years' imprisonment. The victim was his estranged wife.

The offence occurred at his wife's home in January 2001. The appellant produced a handgun, repeatedly pulled the trigger while holding it to her head, and eventually fired a bullet through her forehead. He then struck her repeatedly with a wooden lamp stand. The appellant was found shortly afterwards at his own address having apparently self-inflicted wounds to his throat and forearms and taken a drug overdose.

The sentencing judge, Blanch CJ DC, noted the appellant's age, significant ill-health (including coronary artery bypass surgery during remand), absence of prior convictions, psychological fragility, and guilty plea. His Honour found special circumstances and imposed a head sentence of six years with a non-parole period of four years.

  • Whether the sentencing judge erred by not more substantially varying the statutory ratio between the non-parole period and head sentence, having found special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge applied the wrong approach to the special circumstances finding by focusing too narrowly on the appellant's need for post-release supervision and rehabilitation
  • Whether evidence of a deterioration in the appellant's medical condition after sentencing was admissible on appeal

Decision

On the first ground, the Court of Criminal Appeal found no error in the sentencing judge's approach to the ratio between the non-parole period and the head sentence. The sentencing judge had properly identified special circumstances and exercised his discretion not to make a significant departure from the statutory ratio. The Court found this was a legitimate sentencing exercise, not an error of principle.

On the second ground, the Court rejected the argument that the sentencing judge had too narrowly approached the special circumstances question. The sentencing judge had regard to the appellant's age, poor health, and psychological fragility, as well as the need for post-release assistance. These were all valid considerations, and no error in the reasoning was established.

Regarding the admissibility of post-sentencing evidence, the Court confirmed that such evidence is admissible only in exceptional circumstances. The established principle permits fresh evidence of a physical or mental condition where that condition was unknown or insufficiently appreciated at the time of sentencing, and where it demonstrates that imprisonment will bear more harshly on the offender than was then understood. The Court found that the evidence of deterioration in the appellant's condition did not meet this threshold, particularly because the sentencing judge had already taken significant ill-health into account.

Howie J, in a brief concurring judgment, emphasised the exceptional and limited nature of the Court's power to receive post-sentencing evidence. His Honour underscored that the court must guard against acting out of sympathy rather than established principle, citing R v Ashton (2002) and the earlier caution in R v Ehrenburg.

Orders Made

  • Time for filing the application for leave to appeal extended
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 does not compel a substantial departure from the statutory ratio between the non-parole period and the head sentence; the degree of variation remains a matter of judicial discretion.
  • The Court of Criminal Appeal confirmed that sentencing judges may take a multi-factor approach to special circumstances, encompassing age, ill-health, psychological fragility, and the need for post-release supervision, rather than focusing on any single consideration.
  • Post-sentencing evidence of a change in a prisoner's physical or mental condition is admissible on appeal only in exceptional cases, where the condition was unknown or not fully appreciated at sentencing and demonstrates that imprisonment bears more harshly than was foreseen.
  • In dismissing the appeal, the Court found no error of principle where the sentencing judge had already factored significant health concerns into the sentence, meaning fresh evidence of deterioration did not cross the threshold for admission.
  • Courts exercising appellate jurisdiction must be scrupulous to avoid reducing an otherwise appropriate sentence out of sympathy, applying the post-sentencing evidence principle in a principled and restrained manner.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 33
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 44
- Criminal Appeal Act 1912 (NSW) s 6(3)
- Criminal Procedure Act 1999 (NSW)

Cases:
- 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 (unreported, CCA, 14 December 1990)
- R v Jenkins (unreported, 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