Regina v Josef Mioduszewski [2004] NSWCCA 154

Regina v Josef Mioduszewski [2004] NSWCCA 154

The sentencing judge had expressly taken the applicant's age, ill health and psychological fragility into account in finding special circumstances and fixing both the head sentence and non-parole period; reducing the statutory ratio from 75% to 66% was a substantial disturbance and the offence remained very serious. The proposed further medical evidence showed no more than the natural deterioration of conditions known and allowed for at sentencing, and did not establish exceptional circumstances undermining the basis of the sentence or justifying admission of post-sentence evidence.

Jurisdiction
Australia
Judgment Date
28 May 2004
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal
Outcome
Leave to appeal granted. Appeal dismissed.
Legal Topics
['malicious Wounding With Intent to Do Grievous Bodily Harm' 'non Parole Period' 'special Circumstances' 'fresh Evidence on Sentence Appeal' 'post Sentencing Deterioration in Medical Condition']
['criminal Law' 'sentencing'] ['malicious Wounding With Intent to Do Grievous Bodily Harm' 'non Parole Period' 'special Circumstances' 'fresh Evidence on Sentence Appeal' 'post Sentencing Deterioration in Medical Condition']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge failed sufficiently to vary the ratio between the non-parole period and the head sentence after finding special circumstances.' "Whether evidence said to show that the applicant's medical condition had deteriorated since sentencing should be admitted and justified appellate intervention."]

Ratio Decidendi

The sentencing judge had expressly taken the applicant's age, ill health and psychological fragility into account in finding special circumstances and fixing both the head sentence and non-parole period; reducing the statutory ratio from 75% to 66% was a substantial disturbance and the offence remained very serious. The proposed further medical evidence showed no more than the natural deterioration of conditions known and allowed for at sentencing, and did not establish exceptional circumstances undermining the basis of the sentence or justifying admission of post-sentence evidence.

Court Disposition

Leave to appeal granted. Appeal dismissed.

Orders

  • ['Time for filing the Application for Leave to Appeal extended.' 'Leave to appeal granted.' 'Appeal dismissed.' 'Affidavits of David Philip Giddy and Adelle Hudson rejected.']