Canan EKEN v R

Citation: Canan EKEN v R [2007] NSWCCA 320
Court: New South Wales Court of Criminal Appeal
Date: 13 December 2007
Judge(s): Handley AJA, Hidden J, Hoeben J

Background

The applicant pleaded guilty in the District Court to six offences arising from a prolonged episode of physical and sexual violence against a 17-year-old victim at a residential unit in Rosebery on the night of 29 to 30 July 2004. The offences involved the applicant repeatedly assaulting the victim and compelling her, through force and threats, to perform sexual acts on two co-offenders. Two other men participated in the events and were sentenced separately.

The District Court imposed an aggregate sentence of approximately 15 years and 9 months, with an effective non-parole period of approximately 11 years and 9 months. The applicant sought leave to appeal against those sentences on the ground that they were manifestly excessive, relying in particular on evidence of mental illness and the hardship his imprisonment caused to a disabled brother and other family members.

Legal Issues

• Whether the sentences imposed in the District Court were manifestly excessive
• Whether the applicant was affected by mental illness at the time of the offences, and what weight that should carry in sentencing
• Whether hardship to the applicant's disabled brother and other family members warranted mitigation of sentence
• Whether the sentencing judge correctly applied the principles governing cumulation and concurrency across the multiple counts

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, finding that the original sentences were manifestly excessive. Hidden J (with whom Handley AJA and Hoeben J agreed) identified error in the structure of the original sentences and re-sentenced the applicant accordingly.

On the question of mental illness, the Court accepted that psychiatric evidence was relevant to the applicant's moral culpability at the time of the offences, though the gravity of the offending remained high. The Court took that material into account as a mitigating factor in fixing the revised sentences, alongside the applicant's pleas of guilty, for which the sentencing judge's discounts were accepted as appropriate.

On family hardship, the Court acknowledged the impact of the applicant's imprisonment on his disabled brother and other family members. This factor was treated as carrying some mitigating weight, consistent with established principles that recognise exceptional hardship to dependants as a relevant sentencing consideration, though it could not substantially reduce sentences for offences of this seriousness.

The Court found special circumstances justifying a departure from the standard statutory proportion between non-parole period and head sentence, given the need for an extended period of supervision on parole. The aggregate sentence was reduced from approximately 15 years and 9 months to 14 years and 3 months, with an effective non-parole period of 10 years and 3 months.

Orders Made

• Leave to appeal granted
• Appeal allowed
• Sentences passed in the District Court quashed
• Applicant re-sentenced as follows:
• Count 1 (assault occasioning actual bodily harm): fixed term of 2 years 6 months, commencing 30 July 2004, expiring 29 January 2007
• Count 3 (common assault): fixed term of 9 months, commencing 30 October 2004, expiring 29 July 2005
• Count 4 (aggravated sexual assault): 8 years, non-parole period of 5 years 6 months commencing 30 October 2004 (expiring 29 April 2010), balance of term 2 years 6 months expiring 29 October 2012
• Count 5 (assault occasioning actual bodily harm): fixed term of 2 years 6 months, commencing 30 April 2005, expiring 29 October 2007
• Count 6 (aggravated sexual assault): 9 years, non-parole period of 6 years commencing 30 April 2005 (expiring 29 April 2011), balance of term 3 years expiring 29 April 2014
• Count 2 (aggravated sexual assault in company): 13 years, non-parole period of 9 years commencing 30 October 2005 (expiring 29 October 2014), balance of term 4 years expiring 29 October 2018
• Aggregate sentence: 14 years and 3 months, with an effective non-parole period of 10 years and 3 months
• Eligible for parole on 29 October 2014

Key Takeaways

• The Court of Criminal Appeal confirmed that evidence of mental illness at the time of offending can reduce moral culpability and carry mitigating weight at sentence, even where the objective seriousness of the conduct remains very high.
• Hardship to a disabled or dependent family member is a recognised mitigating factor in sentencing, though it will carry limited weight when the offences are of significant gravity.
• Where a sentencing judge identifies special circumstances, the statutory proportion between non-parole period and head sentence may be adjusted to allow for a longer period of post-release supervision on parole.
• An aggregate sentence may be found manifestly excessive even where individual counts are separately within range; the Court examined the overall effect of the sentencing structure, including the choice of commencement dates across counts.
• Pleas of guilty remain a relevant mitigating factor in serious sexual offence matters, and the Court of Criminal Appeal here accepted the discounts the original sentencing judge had applied for those pleas.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59 (assault occasioning actual bodily harm), 61 (common assault), 61J (aggravated sexual assault), 61JA (aggravated sexual assault in company)

Cases:
- Papadopoulos v R; Topcu v R [2007] NSWCCA 274
- Pearce v The Queen (1998) 194 CLR 610
- R v Weldon; R v Carberry [2002] NSWCCA 475; (2002) 136 A Crim R 55
- R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267
- R v Engert (1995) 84 A Crim R 67
- R v Edwards (1996) 90 A Crim R 510
- Roberts v R [2007] NSWCCA 112
- R v Dib (CCA, unreported, 13 September 1991)
- R v Israil [2002] NSWCCA 255