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Court of Criminal Appeal 9 May 2001

R v Koomson

[2001] NSWCCA 176

Assault & violenceDomestic & family violence
SENTENCING APPEAL AGAINST SEVERITY

Citation: R v Koomson [2001] NSWCCA 176
Court: New South Wales Court of Criminal Appeal
Date: 9 May 2001
Judge(s): Carruthers AJ; Badgery-Parker AJ

Background

The appellant, a naturalised Australian citizen originally from Ghana, pleaded guilty in the Parramatta District Court to one count of malicious wounding with intent to inflict 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 wife.

In the early hours of 20 January 1999, the appellant broke into the family home armed with a claw hammer and a knife. He repeatedly struck and stabbed his wife about the head, face, arms and back. The attack was witnessed by his stepdaughter and his four-year-old son. The victim suffered a fractured jaw, multiple lacerations, ongoing headaches, back pain, facial scarring, and lasting psychological harm.

The sentencing judge, Hosking DCJ, imposed a minimum term of four years' penal servitude followed by an additional term of three years. The appellant sought leave to appeal, arguing the sentence was excessive because the judge had failed to give sufficient weight to the major depressive condition he was suffering at the time of the offence.

  • Whether the sentencing judge gave adequate weight to the appellant's diagnosed depressive condition in assessing his criminal responsibility and fixing the appropriate sentence.
  • Whether any error of principle or fact could be identified in the sentencing judge's reasoning that would justify appellate intervention.

Decision

The Court of Criminal Appeal accepted that the appellant was suffering from a major depressive condition at the time of the offence. However, it found that Hosking DCJ had clearly taken this into account, expressly acknowledging that the condition attracted a degree of diminished criminal responsibility and warranted a lesser sentence than would otherwise have been imposed.

The Court distinguished the appellant's emotional disability from the higher-order mental disorders discussed in the relevant case law. Where a serious mental illness might substantially reduce the weight given to general deterrence in sentencing, the depressive condition here was of a lesser degree. The sentencing judge nonetheless treated it as a mitigating factor, and the Court found no indication that he misunderstood either the legal principle or the facts to which he was applying it.

Taking into account both the gravity of the offence, which involved a prolonged and brutal attack on a defenceless victim in the presence of young children, and the relevant subjective matters including the depressive condition, the Court concluded that no error had been demonstrated. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A diagnosed depressive condition at the time of the offence can attract a degree of diminished criminal responsibility in sentencing, warranting some reduction in the penalty that would otherwise be imposed.
  • The principle that general deterrence should be given reduced weight applies most clearly to offenders suffering from mental disorders of a significant order; it does not automatically apply with equal force to less severe emotional or depressive conditions.
  • No error was established merely because counsel identified a particular phrase in the sentencing remarks that appeared unfavourable. The Court assessed the sentencing remarks as a whole and found the judge had correctly understood and applied the relevant principles.
  • In dismissing the appeal, the Court reaffirmed that appellate intervention in severity appeals requires a demonstrated error of principle or fact by the sentencing judge, not simply an argument that greater weight should have been assigned to a particular mitigating factor.
  • The seriousness of the objective circumstances, including the sustained nature of the attack, the vulnerability of the victim, and the lasting physical and psychological injuries caused, remained highly relevant to the sentence even where mitigating factors were present.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33 (malicious wounding with intent to inflict grievous bodily harm)

Cases Cited
- R v Anderson [1985] VR 155
- R v Bus (Unreported, NSWCCA, 3 November 1995)
- R v Engert (1995)
- R v Fahda [1999] NSWCCA 267
- R v Scognamiglio (1991) 56 A Crim R 86
- R v Wright (1997) 93 A Crim R 48