R v DOBACZEWSKI [2000] NSWSC 344

New South Wales Supreme Court

CITATION : R v DOBACZEWSKI [2000] NSWSC 344 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 70044/99 HEARING DATE(S) : 18/02/2000,14/04/2000 JUDGMENT DATE : 20 April 2000

PARTIES : REGINA v Janusz DOBACZEWSKI JUDGMENT OF : Barr J at 1

COUNSEL : Crown: W Robinson QC Offender: C Nash SOLICITORS : Crown: SE O'Connor Offender: Legal Aid Commission of NSW DECISION : See paragraph 20.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GRAHAM BARR J

Thursday, 20 April 2000

70044/99 - REGINA v Janusz DOBACZEWSKI

SENTENCE 1 HIS HONOUR: On 3 December 1999 the offender, Janusz Dobaczewski, was arraigned on charges of the manslaughter on 25 November 1998 at Liverpool of Michal Wojcik and of assaulting him, thereby occasioning him actual bodily harm. He pleaded guilty to the second charge and the Crown accepted his plea in discharge of the indictment. 2 On 25 November 1998 there was a birthday party at a unit in Liverpool where Ms Grazyna Radwan and Leszek Matlak lived. The party began at about 11am and one of the guests was the deceased, Michal Wojcik. By about 2pm he was well affected by alcohol and began to insult and irritate other guests with his remarks. One guest left in order to avoid becoming involved in a fight with him. 3 The offender arrived at about 6pm. He was already under the influence of alcohol and continued to drink at the party. 4 As the evening progressed the deceased and the offender began to argue. At one stage the deceased told the offender that he wanted to go outside and fight him. Mr Leszek was not prepared to put up with it and decided to take the dog for a walk. By about 8pm the deceased and the offender left the unit together, but they appear to have patched up their differences because they were going to the deceased's house to obtain more alcohol. By all accounts they were both drunk by that stage. 5 After they left the unit they got into a fight. Neighbours heard them. Blood which probably came from the offender was found in various parts of the foyer of the unit block. After his subsequent arrest, police noticed that he was bleeding from wounds on his forehead, his nose and his chin. He claimed that the deceased had hit him and kicked him. 6 The fight continued into the street and a number of neighbours saw what the men were doing, though the accounts vary considerably. At about 8.30pm one witness saw them at the entrance to the unit block. The offender was leaning against a wall and the deceased was kneeling on the grass nearby, saying "please, no more". The offender was motioning with his hand, saying "come one, come on". The offender tried to lift the deceased from the ground but failed to do so. He walked away and the deceased regained his feet, pulled up his pants and began walking away. The offender followed him into the middle of the street and punched him in the back of the head. The deceased fell down again. Again the offender walked away from him. The deceased got to his feet again and called for help. The offender approached him again and pushed him in the chest. The deceased fell backwards onto his head on the hard surface of the road. In that fall he sustained multiple skull fractures which led to his death more than two months later in hospital. 7 I do not think that the fight was as one-sided as that account would suggest. It seems clear that what the neighbours saw was only the conclusion of a fight that had taken place in the building of the units after the two men left Ms Radwan's unit. A trace of blood was found in the building which was consistent with and, I think, must have come from, the deceased. I think that there was a willing, drunken fight and that each man gave as good as he got. 8 Both men were injured. There was no evidence of any particular injury suffered by the deceased before his skull was fractured. It is proper to infer, however, that he sustained some bodily harm. He must have bled superficially and would have sustained bruising from the blows delivered by the offender. Such harm was not serious, however. 9 Of course, I cannot take into account the injuries the deceased received when his head struck the road, because they constituted harm more serious than that contemplated by the offence of which the offender has pleaded guilty. 10 The offender did not give evidence, possibly because he claims to have no memory of the fight. He gave an account to Dr Nielssen, who wrote a report which came into evidence. The offender told Dr Neilssen that he could not remember several hours around the time of the offence. On the day of the offence he visited his wife between noon and 2pm, where he consumed two large bottles of beer, and then went on to spend the afternoon at an hotel, where he ate but did not drink. When he went to the party he met the deceased, whom he did not know. He had more to drink there. His last memories were of the deceased goading him to fight. 11 He had some recollection of the interview at the police station, though that was intermittent. 12 It is apparent from a reading of the record taken of the interview at the police station that the offender was then seriously affected by alcohol. 13 Dr Neilssen accepts as reasonable the offender's claim not to remember the fight, and I accept the offender's claim about that. 14 He is forty-five years old and was born in Poland. He came to Australia in 1981. His work history is in driving and manual work, including machine operation. He was married until September 1992, when the marriage broke up. There are two children of the marriage and his former wife has a third child. He is devoted to all three children and is generally acknowledged, including by former wife, as being a good father to all of them. He still sees something of his former wife and visits her regularly. The marriage broke down because of his drinking. 15 His criminal history is not a serious one, with one fairly old conviction for assault, one of high range prescribed concentration of alcohol, and two of stealing or shoplifting. His record is consistent with the directionless life he has been leading out of work and seriously addicted to alcohol. 16 He began drinking heavily in his late teens when he was a conscript in the Polish army. He has drunk heavily ever since, particularly since his marriage broke up and he fell out of work. According to the report of Anna Robilliard, psychologist, he is depressed and has a dependent personality. 17 His plea of guilty was offered on the first occasion a conviction for this offence was offered in discharge of the indictment. The time and cost of a trial had been saved. The plea is some evidence of contrition, particularly because it involves his abandonment of a defence of self-defence, which would on the evidence have been available to him. 18 The most serious feature of the matter is that in spite of his long and heavy addiction to alcohol, the offender has been unprepared to acknowledge the fact. There is abundant evidence of that. Ms Robilliard's report is dated 12 April 2000, more than four months after the entry of the plea of guilty. Some two weeks before the preparation of that report the offender first attended Alcoholics Anonymous. It is far too early to say whether that was the first step in the process of rehabilitation, because it may have been no more than the acceptance of advice given by his legal advisers. 19 The maximum penalty for this offence is five years' imprisonment, but a custodial sentence is in my opinion not called for where the assault was occasioned and the actual bodily harm sustained in a fight between two drunken men and hostilities were probably commenced by the victim. I propose to give the offender the benefit of a bond, but it will be a long one and the subject of conditions which, I hope, will lead to a recognition by the offender of his alcohol dependence and the institution of a system of control over it, for the benefit of himself and the society in which he lives. 20 Janusz Dobaczewski, I order you to enter into a good behaviour bond for five years. The conditions of the bond are that -