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Court of Criminal Appeal 3 December 2010

Simkhada v R

[2010] NSWCCA 284

Assault & violenceDomestic & family violence
CRIMINAL LAW APPEAL AND NEW TRIAL APPEAL AGAINST SENTENCE GROUNDS FOR INTERFERENCE GENERAL SENTENCING CONSIDERATIONS EFFECT OF MENTAL ILLNESS ON SENTENCING

Citation: Simkhada v R [2010] NSWCCA 284
Court: NSW Court of Criminal Appeal
Date: 3 December 2010
Judge(s): Simpson J, Blanch J, RA Hulme J

Background

The applicant, a Nepalese national living in Australia on a spousal visa, was convicted of wounding his estranged wife with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act 1900. The offence occurred on 5 March 2009 when the applicant attended his wife's home and struck her repeatedly on the head with a piece of wood, causing two deep lacerations requiring suturing and other injuries. An apprehended violence order (AVO) and a good behaviour bond were both in force at the time.

The applicant had a documented history of mental illness, including depression and suicidal ideation arising after neurosurgery in Nepal in 2000. A psychiatrist's report before the sentencing judge confirmed ongoing psychiatric treatment both in Nepal and during the applicant's time in Australian custody.

In the District Court, Judge Ashford sentenced the applicant to 3 years 9 months imprisonment with a non-parole period of 2 years 6 months, commencing from the date of arrest. The applicant sought leave to appeal, arguing the sentence was manifestly excessive and that the sentencing judge had failed to adequately account for several mitigating factors.

  • Whether the sentencing judge erred by failing to give sufficient weight to the applicant's need to serve his sentence in protective custody
  • Whether the applicant's mental illness and its effect on his culpability and experience of custody were adequately considered
  • Whether the sentence was manifestly excessive, having regard to all subjective circumstances, including the guilty plea, remorse, limited criminal history, isolation from family and culture, and the sentencing statistics for comparable offences

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. All three judges agreed with the reasons delivered by RA Hulme J.

On the question of protective custody, the Court acknowledged that serving a sentence in protective custody can be a relevant mitigating consideration, as it generally involves more restrictive conditions and a harsher custodial experience. However, the Court found the sentencing judge's failure to address this factor expressly did not constitute a material error warranting intervention, given the overall balance of the sentence and the weight properly accorded to the many other subjective factors.

On mental illness, the Court accepted that the applicant had a genuine and longstanding psychiatric condition, diagnosed by the consulting psychiatrist as present before and continuing after the offence. The Court noted that mental illness is relevant both to moral culpability and to the experience of imprisonment, and found these matters had been taken into account at first instance to a sufficient degree. The diagnosis did not, however, substantially reduce the objective seriousness of the offence.

On manifest excess, the Court was not persuaded by statistical comparisons drawn from Judicial Commission data. It observed that the offence of wounding with intent encompasses a very wide range of circumstances, making statistical analysis of limited utility. The fact that the applicant committed the offence while on conditional liberty, including a current AVO relating to the same victim, was a significant aggravating feature not captured in the statistics. The sentence was described as sitting comfortably within the range for an offence assessed at the lower end of objective seriousness, appropriately moderated by the applicant's subjective circumstances.

Orders Made

  • Application for leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Serving a sentence in protective custody is a recognised sentencing consideration in NSW, reflecting the harsher conditions it typically entails, though a failure to address it expressly will not automatically constitute appealable error if the overall sentence is within range.
  • A longstanding mental illness is relevant both to an offender's moral culpability and to the burden imprisonment places on that offender, but its weight depends on the particular facts and does not automatically reduce objective seriousness.
  • In dismissing the appeal, the Court reinforced that Judicial Commission sentencing statistics must be applied with considerable caution where, as with wounding with intent offences, the underlying circumstances vary very widely across cases.
  • Committing a serious offence while subject to both a good behaviour bond and an AVO relating to the same victim constitutes a significant aggravating factor that sentencing statistics may not capture.
  • No error sufficient to warrant intervention under the principles in House v The King and Markarian v The Queen was established: the sentence was not unreasonable or plainly unjust.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Div 1A Pt 4

Cases:
- House v The King [1936] HCA 40; 55 CLR 499
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Wong v The Queen [2001] HCA 64; 207 CLR 584
- R v Bloomfield (1998) 44 NSWLR 734
- Kafovalu v R [2007] NSWCCA 141
- Clarke v R [2009] NSWCCA 49
- Mulato v R [2006] NSWCCA 282
- Quayle v R [2010] NSWCCA 16
- R v Barakat [2004] NSWCCA 201
- R v Cramp [2004] NSWCCA 264
- R v Fidow [2004] NSWCCA 172
- R v Jarrold [2010] NSWCCA 69
- R v Van Rysewyk [2008] NSWCCA 130
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- R v Wright (1997) 93 A Crim R 48