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Court of Criminal Appeal 5 April 2013

ADZIOSKI v R

[2013] NSWCCA 69

Sexual offencesAssault & violence
CRIMINAL LAW SENTENCE APPEAL OFFENDER SUFFERING FROM MENTAL ILLNESS WHETHER SENTENCE MANIFESTLY EXCESSIVE.

Citation: ADZIOSKI v R [2013] NSWCCA 69
Court: NSW Court of Criminal Appeal
Date: 5 April 2013
Judge(s): Hoeben CJ at CL; Slattery J; Bellew J

Background

The appellant was sentenced in the District Court following a plea in relation to an attempted sexual intercourse charge under s 61J(1) of the Crimes Act 1900, which carries a maximum penalty of 20 years' imprisonment. The offence involved a sustained physical assault on a 24-year-old woman with a mild intellectual disability, on a train travelling between Wolli Creek and Riverwood on the evening of 22 October 2010. A further offence of aggravated act of indecency involving the same victim was taken into account on a Form 1.

The sentencing judge, Judge Zahra SC, imposed a total sentence of 6 years' imprisonment, comprising a non-parole period of 4 years commencing on the date of the offence, with a balance of term of 2 years. The appellant had been diagnosed with schizophrenia since the age of 20, had been non-compliant with prescribed anti-psychotic medication for approximately six months before the offence, and had also consumed significant quantities of alcohol on the day. He was in breach of bail conditions, which included a prohibition on consuming alcohol, at the time of the offending.

The appellant sought leave to appeal on three grounds: that insufficient weight was given to his mental illness; that the sentencing judge wrongly treated the victim's cognitive impairment as an aggravating feature; and that the sentence was manifestly excessive.

  • Whether the sentencing judge adequately accounted for the appellant's mental illness in assessing moral culpability, and in reducing the weight given to general and specific deterrence.
  • Whether it was a legal error to treat the victim's cognitive impairment as an aggravating factor, given that cognitive impairment was already an element of the charged offence under s 61J(1).
  • Whether the sentence of 6 years (non-parole period of 4 years) was manifestly excessive in the circumstances.

Decision

Ground 1: Mental illness. The Court of Criminal Appeal found that the sentencing judge had engaged in a careful and detailed analysis of the appellant's psychiatric history and had expressly considered the effect of mental illness on moral culpability, general deterrence, and specific deterrence. The judge had before him reports from two psychiatrists and had observed the appellant give evidence. The Court found no error in the weight attributed to these matters, noting that the competing sentencing considerations had been properly balanced.

Ground 2: Victim's cognitive impairment as aggravating factor. The appellant argued that because the victim's cognitive impairment was an element of the offence charged, it could not also be treated as an aggravating feature when setting the sentence. The Court accepted the legal principle that a fact constituting an element of an offence should not be used again in aggravation. However, the Court found that a close reading of the sentencing judge's remarks did not establish that his Honour had in fact committed this error. The cognitive impairment was referenced in context, and the judge's remarks did not demonstrate it had been double-counted. This ground was not made out.

Ground 3: Manifest excess. The Court applied the established test, namely whether the sentence was unreasonable or plainly unjust, with the focus on the sentence actually imposed rather than the starting point before discounts. The offending involved a public assault and degradation of the complainant over a sustained period on a train, including physically restraining her when she attempted to leave. The Form 1 offence, while part of the same sequence of events, was also a relevant consideration. Taking all matters into account, including the significant maximum penalty for the aggravated form of the offence and the appellant's mental illness, the Court was not persuaded that the sentence was manifestly excessive.

Orders Made

  • Leave to appeal granted.
  • The appeal dismissed.

Key Takeaways

  • A sentencing judge does not commit a double-counting error merely by referring to a victim's cognitive impairment in the course of sentencing remarks, provided it is clear that the characteristic was not used as a further aggravating factor beyond its role as an element of the offence charged.
  • Where a sentencing judge undertakes a detailed and express analysis of an offender's mental illness across multiple dimensions, including moral culpability and the weight to be given to both general and specific deterrence, an appellate court will generally find no error in how those factors were weighed.
  • In dismissing a manifest excess argument, the Court of Criminal Appeal confirmed that the proper focus is on the sentence actually imposed, not on any intermediate step such as the starting point before a plea discount is applied.
  • Competing sentencing considerations, particularly the tension between reduced moral culpability arising from mental illness and the need for community protection in serious sexual offences, require careful balancing rather than any single factor being determinative.
  • The presence of a Form 1 offence, even where it arises from the same sequence of events as the principal charge, remains a factor capable of increasing the overall sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 61H(1A), 61J(1), 61O(1A)

Cases:
- Markarian v R [2005] HCA 25; 228 CLR 357
- Carroll v The Queen [2009] HCA 13; 83 ALJR 579
- Muldrock v The Queen [2011] HCA 39; 240 CLR 120
- Veen v R (No 2) [1988] HCA 14; 164 CLR 465
- Lowndes v R [1999] HCA 29; 195 CLR 665
- Everett v R [1994] HCA 49; 181 CLR 295
- R v Engert (1995) 84 A Crim R 67
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1
- Graham v R [2009] NSWCCA 212
- R v Allpass [1993] 72 A Crim R 561
- Benitez v R [2006] NSWCCA 21; 160 A Crim R 166
- Devaney v R [2012] NSWCCA 285
- Cole v R [2010] NSWCCA 227
- Courtney v R [2007] NSWCCA 195
- R v Burnett [2011] NSWCCA 276
- Papworth v R [2011] NSWCCA 253
- Taylor v Regina [2006] NSWCCA 7
- R v Wickham [2004] NSWCCA 193
- R v Wright (1997) 93 A Crim R 48
- Attorney-General's Application under section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146