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Court of Criminal Appeal 21 October 2013

Andrew Iskandar v R

[2013] NSWCCA 235

Homicide
CRIMINAL LAW APPEAL SENTENCE PARITY SENTENCE SENTENCE

Citation: Andrew Iskandar v R [2013] NSWCCA 235
Court: Court of Criminal Appeal, NSW
Date: 21 October 2013
Judges: Beazley P, RA Hulme J, Bellew J

Background

The applicant was convicted by jury of the murder of a man with whom his mother had been having an affair. The killing was carried out as a joint criminal enterprise with his father. Both father and son were tried separately and each convicted of murder.

The sentencing judge found the murder was premeditated, involved weapons (a knife and a hammer), and was executed with an intention to kill. The applicant was 19 years old at the time of the offence. He was arrested in Singapore on 24 February 2010 while awaiting extradition, and arrived in Australia on 21 May 2010, when he was formally charged.

On 16 March 2012, the applicant was sentenced to a minimum term of 18 years imprisonment with an additional term of 7 years. His father, sentenced separately some months later, received a minimum term of 17 years with an additional term of 6 years. The applicant sought leave to appeal on four grounds.

  • Whether the sentencing judge erred by failing to treat the applicant's mental state as relevant to moral culpability, rather than only to general deterrence
  • Whether the disparity between the applicant's sentence and his father's sentence gave rise to a justifiable sense of grievance
  • Whether the sentence of 18 years minimum was manifestly excessive
  • Whether the sentencing judge erred by backdating the sentence to 21 May 2010 (arrival in Australia) rather than 24 February 2010 (date of arrest in Singapore)

Decision

Mental state and moral culpability: At the sentencing hearing, the submission concerning the applicant's mental state was directed only to its effect on general deterrence. No submission was made that it reduced his moral culpability. The medical evidence before the sentencing judge also did not establish a causal connection between any mental condition and the offending. The Court of Criminal Appeal held that it was not open to raise a broader submission for the first time on appeal, and that in any event the evidence did not support the proposition. This ground failed.

Parity: The applicant argued that receiving a one-year longer minimum term than his father produced a justifiable sense of grievance. The Court rejected this. The father was sentenced later and by a different judge, on findings made in separate proceedings. Several factors supported the difference in sentence, including that the father was the organiser and primary instigator of the enterprise, but the applicant's individual circumstances and criminal history also differed. The parity principle did not require identical outcomes in these circumstances.

Manifest excess: The Court found the sentence was not unreasonable or plainly unjust. No challenge was made to the sentencing judge's characterisation of the offending as grave, premeditated, involving weapons and an intention to kill. The subjective circumstances of the applicant were expressly considered by the sentencing judge, and no error in that assessment was demonstrated.

Custody start date: Both parties accepted that the applicant had been taken into custody in Singapore on 24 February 2010, not 21 May 2010 as recorded by the sentencing judge. The Court found this was a clear factual error and intervened to correct it, backdating the commencement of the sentence by approximately three months.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • In lieu of the sentence imposed on 16 March 2012, the applicant is sentenced to a minimum term of 18 years imprisonment commencing 24 February 2010 and expiring 23 February 2028, with an additional term of 7 years expiring 23 February 2035

Key Takeaways

  • A submission that a mental condition reduces an offender's moral culpability cannot be raised for the first time on appeal if it was not advanced at the sentencing hearing; the Court of Criminal Appeal confirmed this principle here.
  • Where medical evidence does not establish a causal link between a mental state and the offending, that evidence carries significantly limited weight in sentencing.
  • The parity principle does not automatically require co-offenders to receive identical sentences, particularly where they were sentenced by different judges in separate proceedings and their individual circumstances differ.
  • Sufficient evidence existed, on the unchallenged findings of premeditation, use of weapons, and intention to kill, to sustain the 18-year minimum term as neither unreasonable nor plainly unjust.
  • A factual error in recording the date from which pre-sentence custody commenced constitutes a correctable error on appeal, with the sentence adjusted to reflect the actual date of custody.

Legislation and Cases Referenced

Cases:
- Beldon v R [2012] NSWCCA 194
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Dwayhi v R; Bechara v R [2011] NSWCCA 67; (2011) 205 A Crim R 274
- Gill v R [2010] NSWCCA 236
- Green v R; Quinn v R (2011) 244 CLR 462
- Hili v R, Jones v R [2010] HCA 45; (2010) 242 CLR 520
- Lowe v R (1984) 154 CLR 606
- Pavicevic v R [2010] ACTCA 25
- R v Andrew Iskandar and R v Nita Iskandar (No 4) [2012] NSWSC 149
- R v Engert (1995) 84 A Crim R 67
- R v Hazairin Iskandar [2012] NSWSC 1324
- R v JW [2010] NSWCCA 49
- R v Spizzerri [2001] VSCA 49
- R v Swan [2006] NSWCCA 47
- Tatana v R [2006] NSWCCA 398
- Zreika v R [2012] NSWCCA 44