AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 2 December 2016

Ukropina v R

[2016] NSWCCA 277

Homicide
CRIMINAL LAW SENTENCE APPEAL MEDICAL EVIDENCE ALL ONE WAY ERROR MADE OUT NEED TO RESENTENCE.

Citation: Ukropina v R [2016] NSWCCA 277
Court: Court of Criminal Appeal, NSW
Date: 2 December 2016
Judge(s): Hoeben CJ at CL; Bellew J; Hidden AJ

Background

The appellant, a man suffering from severe depression with psychotic features, pleaded guilty in the Local Court to manslaughter on the basis of substantial impairment by abnormality of mind under s 23A of the Crimes Act 1900 (NSW). The plea followed the fatal stabbing of his 29-year-old daughter at their Kingsford home in November 2013. In the days before the offence, the appellant had been hospitalised with major depression and was under the care of an acute mental health team.

At the sentencing proceedings in the District Court, both the Crown's expert (Dr Nielssen) and the defence expert (Dr Furst) expressed the same opinion: the appellant's mental illness had deprived him of the capacity to know his actions were wrong and made it difficult for him to exercise self-control. Both doctors also considered that a full mental illness defence had been available to him.

Scotting DCJ sentenced the appellant to a total term of 6 years and 9 months, with a non-parole period of 4 years and 9 months. The appellant sought leave to appeal, contending that the sentencing judge had misjudged the level of his mental impairment and failed to properly account for it.

  • Whether the sentencing judge erred in finding that the appellant's mental impairment at the time of the offence did not extend materially beyond the threshold required to establish the partial defence of substantial impairment.
  • Whether the sentencing judge provided adequate reasons for that finding, given that all medical evidence pointed in one direction.
  • Whether the sentencing judge erred by failing to consider the appellant's mental illness when assessing the objective seriousness of the offending.

Decision

The Court of Criminal Appeal, with Hoeben CJ at CL writing the principal judgment, upheld the first two grounds of appeal and found it unnecessary to resolve the third in light of that conclusion.

On the question of the level of impairment, the court found that the sentencing judge had erred. The medical evidence from both experts was unanimous: the appellant suffered severe depression with psychotic features that robbed him of the ability to know his actions were wrong and severely impaired his self-control. Both experts also agreed a full mental illness defence had been available. In those circumstances, the sentencing judge's conclusion that the impairment did not significantly exceed the minimum threshold required by the partial defence was irreconcilable with the evidence before him.

On the adequacy of reasons, the court found that a judge who departs from uncontested expert evidence is required to explain why. The sentencing judge had not done so. Where the medical evidence ran only one way and pointed strongly to a very substantial level of impairment, the failure to engage with that evidence and articulate a basis for departing from it constituted a separate and independent error.

Because error was established on the first two grounds, the Court resentenced the appellant. Taking into account the sentencing judge's other uncontested findings, the appellant's remorse and guilt, his improved mental condition in custody, and the expert opinion that a longer parole period would better support rehabilitation, the Court reduced the non-parole period from 4 years and 9 months to 4 years, with a balance of term of 2 years. Special circumstances were found to exist.

Orders Made

  • Leave to appeal granted.
  • The appeal allowed.
  • The sentence imposed by Scotting DCJ on 10 December 2015 quashed.
  • In lieu thereof, imprisonment with a non-parole period of 4 years commencing 14 November 2013 and expiring 13 November 2017, with a balance of term of 2 years expiring 13 November 2019.

Key Takeaways

  • Where all expert medical evidence at a sentencing hearing points in one direction, a sentencing judge who departs from that evidence must provide reasons explaining why; failure to do so constitutes error.
  • Under s 23A of the Crimes Act 1900 (NSW), a finding that substantial impairment is established does not end the inquiry at sentencing. The degree of impairment beyond the threshold remains a live and material consideration.
  • A unanimous expert opinion that a full mental illness defence was available to the offender is a weighty indicator that the level of impairment was very substantial, not merely sufficient to cross the partial defence threshold.
  • In resentencing, the Court of Criminal Appeal treated the experts' agreement that a longer parole period would improve rehabilitation prospects as supporting a finding of special circumstances, warranting a departure from the standard non-parole to balance of term ratio.
  • The Court's resentencing preserved all unchallenged factual findings of the sentencing judge, limiting its intervention to the specific error identified in the grounds of appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18 and 23A
- Criminal Appeal Act 1912 (NSW), s 5(1)(a)

Cases:
- Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430
- Catley v R [2014] NSWCCA 249
- Cowan v R [2015] NSWCCA 118
- Hone v State of Western Australia [2007] WASCA 283
- Martin v R [2015] NSWCCA 6
- Mizzi v The Queen [1960] HCA 77; 105 CLR 659
- R v Kelly (1993) 30 NSWLR 64
- Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247