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Court of Criminal Appeal 26 May 2008

Kokaua v Regina

[2008] NSWCCA 111

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE APPEAL MENTAL ILLNESS AND DETERRENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE.

Citation: Kokaua v Regina [2008] NSWCCA 111
Court: NSW Court of Criminal Appeal
Date: 26 May 2008
Judge(s): James J, Hislop J, Hoeben J

Background

The appellant pleaded guilty in the Sydney District Court to one count of assault with intent to rob, committed on 27 May 2006. The offence involved the appellant approaching a 62-year-old victim walking his dogs near a lake, grabbing him, and attempting to take money and property from him. The victim's small dog escaped during the struggle and was never recovered.

After the offence, the appellant led the victim on an extended search across multiple locations, accepting money payments and fabricating explanations about the dog's whereabouts. The victim and his wife, who had received the dog as a gift, described the loss in deeply personal terms in their victim impact statement.

The District Court sentenced the appellant to imprisonment with a non-parole period of one year and nine months, commencing 30 January 2007, with a balance of term of a further one year and nine months. The appellant sought leave to appeal, raising several grounds challenging the sentence.

  • Whether a misstatement of fact in the sentencing judge's remarks constituted a material error warranting intervention
  • Whether the sentencing judge failed to give adequate weight to the appellant's mental illness when considering deterrence as a sentencing purpose
  • Whether the sentence should have been backdated to an earlier date than 30 January 2007
  • Whether the sentence was manifestly excessive

Decision

On the misstatement of fact, the Court accepted that the sentencing judge had made an error in his remarks regarding a factual matter. However, the Court found that the error was not material to the sentence actually imposed, and therefore did not constitute a ground for appellate intervention.

On mental illness and deterrence, the Court applied the principle from R v Engert (1995) and related authorities, which recognise that mental illness may reduce the weight given to general deterrence. The Court found that the sentencing judge had adequately taken the appellant's mental health issues into account and had not erred in his approach to this consideration.

On backdating, the appellant argued the sentence should have commenced at an earlier date. The Court examined the chronology of the appellant's custody and the operation of his parole, and was not persuaded that the sentencing judge erred in fixing the commencement date at 30 January 2007, the date on which the appellant completed his outstanding parole.

On manifest excess, the Court noted the significant aggravating features: the offence was committed while the appellant was on parole for robbery, on parole for another offence, subject to a good behaviour bond, and subject to conditional bail. Citing R v Jones (NSWCCA, 30 June 1994), the Court emphasised that committing offences while on conditional liberty is a matter of major aggravation. No error was established in the sentencing discretion, and no lesser sentence was found to be warranted in law.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A misstatement of fact in sentencing remarks does not automatically warrant appellate intervention; the error must be material to the sentence imposed.
  • Where a defendant has mental health issues, a sentencing court should take those into account when weighing deterrence, but the weight given remains a matter of judicial discretion that will not be disturbed absent demonstrated error.
  • Committing an offence while subject to multiple forms of conditional liberty (parole, good behaviour bond, and bail simultaneously) constitutes a matter of major aggravation in sentencing.
  • The Court of Criminal Appeal confirmed it is a court of error: it will interfere with a sentence only where error is shown and the court forms a positive opinion that a lesser sentence is warranted in law, consistent with R v Simpson (2001) 53 NSWLR 704.
  • Sentencing statistics do not define the upper range of available sentences for an offence; that ceiling is set by the statutory maximum penalty.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 94 (assault with intent to rob)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Callaghan v R [2006] NSWCCA 58
- R v Engert (1995) 84 A Crim R 67
- R v Jones (NSWCCA, 30 June 1994)
- R v Simpson (2001) 53 NSWLR 704
- R v Wright (1997) 93 A Crim R 48
- Scognamiglio v R (1991) 56 A Crim R 81