AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 28 November 2001

REGINA v. AKBARY

[2001] NSWCCA 491

Assault & violenceDrugsPublic order & justice offences
CRIMINAL LAW SENTENCE APPEAL ARMED ROBBERY EFFECT OF SERIOUS MENTAL ILLNESS RECORD OF PRIOR OFFENCES

Citation: Regina v Akbary [2001] NSWCCA 491
Court: NSW Court of Criminal Appeal
Date: 28 November 2001
Judge(s): Hidden J; Greg James J

Background

The appellant pleaded guilty in the District Court to one count of robbery whilst armed with an offensive weapon, with a second similar offence taken into account on a Form 1. The principal offence occurred on 16 October 2000, when the appellant entered a shop armed with a meat cleaver or meat hammer, demanded money and cigarettes, and caused significant fear to those present. The second offence had occurred approximately five weeks earlier.

The sentencing judge imposed a total term of four and a half years imprisonment, with a non-parole period of two and a half years backdated to 16 November 2000. The judge found special circumstances justifying the longer additional term, in part because of the appellant's serious mental illness.

The appellant, who appeared in person, sought leave to appeal against sentence. He argued the sentence should have been further mitigated because the offences were committed while he was under the influence of drugs and alcohol, circumstances he submitted were connected to his underlying mental illness.

  • Whether the sentencing judge erred by failing to give sufficient weight to the appellant's serious mental illness and his drug and alcohol use at the time of the offences
  • Whether the conditions of the appellant's custody, including extended time in a cell and placement on protection, warranted a reduction in sentence
  • Whether the appellant's progress in custody, including completing courses, gaining insight into his illness, and becoming drug free, provided a basis for appellate intervention

Decision

The Court granted leave to appeal but dismissed the appeal, finding no error in the sentencing judge's approach. Greg James J, with Hidden J agreeing, accepted that the appellant had a serious mental illness and that this warranted reduced emphasis on general and specific deterrence. The Court also accepted that the appellant's resort to drugs and alcohol was not a freely chosen lifestyle but one likely driven by his mental illness, placing this within the category of exceptional cases identified in the guideline judgment in Regina v Henry.

However, the Court affirmed that diminished considerations of deterrence do not amount to a licence for offending by persons who retain sufficient responsibility for their actions. The sentencing judge had already taken the mental illness, drug and alcohol use, and relevant mitigating factors into account, and the sentence was, in the Court's view, as lenient as the binding authorities permitted.

The Court also addressed the circumstances of custody raised by the appellant, including his being held in a cell for up to 22 hours per day and placed on protection. While acknowledging these conditions made the sentence more onerous, the Court noted it sits as a review court for legal error, not as a court of re-sentencing. No error was identified that would warrant interference.

Separately, Greg James J directed that the psychiatric reports and a copy of the judgment be provided to the Corrective Services Commission. The purpose was to draw attention to the conditions of the appellant's custody and to ensure the Parole Board had regard to the matters raised when considering his release.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed
  • Psychiatric reports and copy of judgment to be provided to the Corrective Services Commission

Key Takeaways

  • The Court of Criminal Appeal confirmed that serious mental illness can reduce the weight given to general and special deterrence in sentencing, but does not eliminate considerations of denunciation and accountability where the offender retains responsibility for their conduct.
  • Under the guideline established in Regina v Henry, drug and alcohol use may operate to mitigate penalty in exceptional cases where that use was not a freely chosen lifestyle but was connected to underlying mental illness.
  • No error was established in the sentencing judge's approach, even where the appellant raised new material on appeal about his progress in custody and the onerous conditions of his detention.
  • The appellate court's role is confined to identifying legal error in the sentence below; evidence of rehabilitation and difficult custodial conditions, while acknowledged, does not independently justify re-sentencing in the absence of such error.
  • In dismissing the appeal, the Court took the practical step of directing that relevant psychiatric material be forwarded to corrective authorities, to inform both the management of the appellant's custody and the Parole Board's future deliberations.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery whilst armed with an offensive weapon)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Regina v Henry (1999) 106 A Crim R 149 (guideline judgment on armed robbery sentencing, per Wood CJ at CL)