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Court of Criminal Appeal 3 April 1998

R v Kotevski

[1998] NSWCCA 1

Assault & violenceDomestic & family violence
CRIMINAL LAW AND PROCEDURE APPEAL AGAINST SENTENCE VICTIM WAS APPLICANT'S ESTRANGED WIFE

Citation: Kotevski v R [1998] NSWCCA 1
Court: Court of Criminal Appeal, New South Wales
Date: 3 April 1998
Judge(s): James J; Hulme J; Simpson J

Background

The applicant, a 70-year-old Macedonian-born man with no prior criminal history, pleaded guilty in the District Court to malicious wounding with intent to do grievous bodily harm under section 33 of the Crimes Act 1900 (NSW). The offence involved a violent attack on his estranged wife at a takeaway food business in Lidcombe, using three kitchen implements in succession. A further offence of assault occasioning actual bodily harm, relating to injuries caused to a bystander who intervened, was taken into account on sentence.

The applicant and his wife had been separated and were engaged in Family Court proceedings at the time of the attack. The sentencing judge found that the applicant "snapped" and lost self-control following a dispute about a family property matter. District Court Judge Cooper sentenced him to three years' penal servitude, with a minimum term of two years and three months commencing 10 September 1996 and an additional term of nine months.

The applicant sought leave to appeal against sentence. The application initially came before two judges who were divided in opinion, which required the matter to be re-heard by a three-judge bench under section 6AA of the Criminal Appeal Act 1912 (NSW).

  • Whether the sentencing judge failed to give sufficient weight to the applicant's subjective circumstances, particularly the stress arising from longstanding matrimonial and property disputes with his wife.
  • Whether the sentencing judge erred by refusing to take into account the applicant's genuine belief that his wife had treated him unfairly, in assessing the degree of his criminality.
  • Whether the sentencing judge was required to adjudicate on the merits of the underlying matrimonial disputes in order to properly sentence the applicant.

Decision

The Court granted leave to appeal but ultimately dismissed the appeal, with James J and Simpson J forming the majority. However, the three judges reached different conclusions on whether the sentencing below had miscarried.

Hulme J (in dissent on outcome) found that the sentencing judge had erred by failing to give any, or any adequate, weight to the stress and frustration the applicant experienced as a result of what he genuinely believed was unfair treatment by his wife. Hulme J emphasised that a court sentencing for a violent offence does not need to determine who was "right or wrong" in an underlying domestic dispute. Rather, the applicant's subjective experience of stress and grievance was relevant to assessing his criminality and moral culpability. His Honour concluded that the sentence had miscarried and would have reduced the total term to two years, with a minimum term of eighteen months.

James J, with whom Simpson J agreed, acknowledged the applicant's difficult subjective circumstances, including his age, lengthy good character, early guilty plea, contrition, and the psychiatric evidence of an adjustment disorder with depressed mood. His Honour recognised that the sentencing judge's approach to the matrimonial background was debatable. However, James J concluded that, in light of the gravity of the offending (a protracted and vicious attack with multiple weapons on a vulnerable victim), the sentence imposed was not outside the proper range and no appealable error was established sufficient to warrant intervention.

Orders Made

  • Leave to appeal against sentence was granted.
  • The appeal against sentence was dismissed.

Key Takeaways

  • A sentencing court is not required to adjudicate on the merits of an underlying domestic or matrimonial dispute in order to treat a defendant's genuine stress and subjective grievance as a relevant mitigating factor when assessing moral culpability.
  • The Court of Criminal Appeal confirmed, by majority, that the sentence of three years with a minimum term of two years and three months for malicious wounding with intent (under section 33 of the Crimes Act 1900) was within the appropriate range in the circumstances, despite the applicant's strong mitigating features.
  • Hulme J's dissenting view established that a sentencing judge who entirely refuses to consider an offender's felt sense of grievance or stress may err, even where those feelings are connected to a disputed factual background.
  • Significant mitigating factors in this case included the applicant's age (70 years), absence of prior convictions, hard work history, early admissions, guilty plea, contrition, and a diagnosis of adjustment disorder with depressed mood.
  • Where two members of the Court of Criminal Appeal are equally divided on an application heard under section 6AA of the Criminal Appeal Act 1912, the matter must be re-heard before a three-judge bench.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33 (malicious wounding with intent to do grievous bodily harm; maximum penalty 25 years)
- Criminal Appeal Act 1912 (NSW), s 6AA (constitution of bench where judges divided)
- Evidence Act 1995 (NSW)
- Sentencing Act 1989 (NSW), s 5(2)

Cases:
- R v Farroukh (Court of Criminal Appeal (NSW), 29 March 1996, unreported)
- R v Phelan (1993) 66 A Crim R 446
- R v Fernando (1992) 76 A Crim R 58