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Court of Criminal Appeal 20 September 2012

Srikantharajah v R

[2012] NSWCCA 209

Assault & violenceTheft & property
CRIMINAL LAW APPEAL AND NEW TRIAL APPEAL AGAINST SENTENCE

Citation: Srikantharajah v R [2012] NSWCCA 209
Court: NSW Court of Criminal Appeal
Date: 20 September 2012
Judges: McClellan CJ at CL, R A Hulme J, Schmidt J

Background

The applicant was sentenced in the District Court at Parramatta in December 2010 on two counts of specially aggravated break, enter and commit a serious indictable offence under s 112(3) of the Crimes Act 1900, an offence carrying a maximum of 25 years imprisonment and a standard non-parole period of seven years. The offences arose from a violent late-night home invasion at Westmead on 17 May 2009, the evening following communal clashes between Tamil and Sinhalese community members in the wake of the Sri Lankan civil war. The applicant, then aged 25, joined a group that travelled to the home of three Sinhalese men armed with cricket stumps, steel bars, a knife, and a bottle of caustic soda.

Two occupants of the home suffered serious injuries. One victim was struck with a metal pole, stabbed in the stomach, and had his ankle broken in two places; the other was blinded by caustic soda, suffered burns to his face and throat, and was later diagnosed with Post Traumatic Stress Disorder. The sentencing judge found the applicant had a lesser role in the enterprise: he was not involved in planning, did not know caustic soda was present, and confined his own physical participation to smashing furniture inside the home. His car was nonetheless used in the commission of the offences, and his DNA was found at the scene.

The applicant was sentenced to seven years on the first count (non-parole period of four years from 1 July 2009) and seven years on the second count (non-parole period of three years and six months from 1 July 2012), producing a total effective sentence of ten years with a non-parole period of six years and six months. He sought leave to appeal that sentence to the Court of Criminal Appeal.

  • Whether the sentencing judge erred in the weight given to general deterrence in light of the applicant's mental health condition
  • Whether the partial accumulation of the two sentences produced a total term that was unreasonable or plainly unjust
  • Whether the overall sentence properly reflected the applicant's subjective circumstances, including his mental condition, background, and degree of participation

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. R A Hulme J (with McClellan CJ at CL and Schmidt J agreeing) addressed the applicant's mental health submission by reference to the established principle that where a mental condition reduces an offender's moral culpability, it may also diminish the relevance of general deterrence as a sentencing purpose. However, the court examined the evidence before the sentencing judge and was not persuaded that the judge had erred in his treatment of that issue. The weight to be given to general deterrence remained a matter for the sentencing judge's discretion within recognised principles.

On the question of accumulation, the court noted that the two counts arose from the same incident but involved two separate victims, each sustaining serious harm. The partial accumulation of sentences in such circumstances is supported by authority, and the court considered whether the resulting total was unreasonable or plainly unjust. It was satisfied that the additional period of mandatory custody flowing from the accumulation was proportionate, particularly given the very substantial harm caused to the victim on the first count, including permanent scarring and a chronic PTSD diagnosis. No error was identified in the sentencing exercise that would warrant intervention.

The court also considered the applicant's subjective circumstances, including his refugee background, psychological difficulties stemming from a prior relationship breakdown, his plea of guilty (for which the sentencing judge applied a 25 per cent discount), and his prospects of rehabilitation. These matters had been taken into account by the sentencing judge. The Court of Criminal Appeal found no basis to conclude the total sentence was excessive or that any specific error warranted resentencing.

Orders Made

  • Leave to appeal allowed
  • Appeal dismissed

Key Takeaways

  • A mental health condition affecting an offender's culpability may reduce the relevance of general deterrence as a sentencing consideration, but this does not automatically diminish the sentence; the weight of that factor remains for the sentencing judge to assess on the evidence.
  • Where two separate victims suffer distinct serious injuries in a single incident, partial accumulation of sentences can be justified and may not produce a total term that is unreasonable or plainly unjust.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an offender's lesser role in a joint criminal enterprise is a relevant mitigating factor, but it does not relieve that offender of liability for the foreseeable consequences of the common enterprise.
  • A 25 per cent reduction for a plea of guilty entered at the earliest opportunity remains consistent with the utilitarian benefit principle applied in NSW sentencing practice.
  • No error was established in the sentencing judge's approach to accumulation or to the applicant's subjective circumstances, including his refugee background and mental health history.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Mental Health Act 2007 (NSW)

Cases
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- R v Engert (1995) 84 A Crim R 67
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- Cahyadi v R [2007] NSWCCA 1
- R v Benitez [2006] NSWCCA 21; (2006) 160 A Crim R 166
- Zreika v R [2012] NSWCCA 44
- Stewart v R [2012] NSWCCA 183
- Beldon v R [2012] NSWCCA 194
- BT v R [2012] NSWCCA 128
- R v Hammond [2000] NSWCCA 540; (2000) 118 A Crim R 66
- R v Hemsley [2004] NSWCCA 228
- R v Hilton [2005] NSWCCA 317; (2005) 157 A Crim R 504
- R v Krempin [2003] NSWCCA 263; (2003) 142 A Crim R 56
- R v Lawrence [2005] NSWCCA 91
- R v Fahda [1999] NSWCCA 267