Citation: Alkanaan v Regina [2017] NSWCCA 56
Court: NSW Court of Criminal Appeal
Date: 11 April 2017
Judges: Payne JA, Harrison J, Schmidt J
Background
The appellant was convicted of murder following a trial before Garling J and a jury in the NSW Supreme Court. The victim, a drug associate, was shot in the head at close range with a loaded shortened shotgun in a suburban street on a Saturday afternoon. The victim's wife and their 18-month-old child were seated in a nearby car at the time.
Following his arrest, the appellant gave a false account to police and, from custody, attempted to procure witnesses to change their evidence. He pleaded guilty to a conspiracy offence arising from the same facts and was found guilty of murder at trial.
Garling J sentenced the appellant to a total term of 28 years and 9 months imprisonment, with an effective non-parole period of 21 years and 9 months. The murder sentence carried a non-parole period of 21 years. The appellant sought leave to appeal against that sentence in the Court of Criminal Appeal.
Legal Issues
- Whether the sentencing judge erred by failing to give sufficient weight to the appellant's significant mental illness in assessing moral culpability
- Whether the sentencing judge erred by treating the appellant as an appropriate vehicle for general deterrence, notwithstanding his mental illness
- Whether the sentencing judge erred in structuring the sentences, specifically in relation to the commencement date of the murder sentence and the degree of accumulation applied
- Whether the overall sentence was manifestly excessive having regard to the objective seriousness of the offending
Decision
Mental illness and moral culpability. The Court accepted that the appellant suffered from significant mental illness, including a major depressive episode and antisocial personality disorder. Harrison J acknowledged that such conditions can reduce moral culpability. However, the Court found that the sentencing judge had expressly taken the appellant's mental illness into account and had reduced the sentence accordingly. No appellable error was established on this ground.
General deterrence. The appellant argued that his mental illness made him an unsuitable vehicle for general deterrence, and that the sentencing judge should have moderated the sentence further on that basis. The Court rejected this argument. Harrison J noted that the authorities do not require the elimination of general deterrence as a sentencing consideration merely because an offender suffers from mental illness. The weight to be given to general deterrence is a matter of degree, and no error in the judge's exercise of that discretion was demonstrated.
Sentence structure and accumulation. The Court examined how the sentences were structured, including the commencement of the murder sentence partway through the fixed term for the conspiracy offence. The Court found that the sentencing judge had carefully considered the totality principle and that the degree of accumulation was within the proper exercise of judicial discretion. Counsel for the appellant had conceded at first instance that some accumulation was appropriate given the conspiracy offence.
Manifest excess. The Court declined to substitute its own assessment of the objective seriousness of the offending for that of the sentencing judge in the absence of demonstrated error under the principles in House v The King. The killing was described by the sentencing judge as "senseless, brutal and wholly unnecessary." Given the maximum penalty of life imprisonment and the standard non-parole period of 20 years for mid-range murder, the Court held that a sentence of 28 years with a 21-year non-parole period was not unreasonable or plainly unjust.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that significant mental illness may reduce an offender's moral culpability and warrant some moderation of sentence, but does not automatically diminish the role of general deterrence to the point where it ceases to operate as a sentencing consideration.
- No appellable error arises from a sentencing judge's weighing of mental illness against the purposes of sentencing, provided the judge has expressly turned his or her mind to the condition and its relevance.
- In dismissing the manifest excess ground, the Court reiterated that an appellate court will not substitute its own view of objective seriousness for that of the sentencing judge absent demonstrated error of the kind identified in House v The King.
- The standard non-parole period of 20 years for mid-range murder operates as a statutory guidepost, and a non-parole period of 21 years was held not to be unreasonable or plainly unjust on the facts.
- Where a sentencing judge has expressly addressed the totality principle in structuring multiple sentences, an appellate court will be slow to interfere with the exercise of that discretion, particularly where some degree of accumulation was conceded to be appropriate.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- House v The King (1936) 55 CLR 499
- Muldrock v The Queen (2011) 244 CLR 120
- Mulato v R [2006] NSWCCA 282
- R v KB; R v JL; R v RJB [2011] NSWCCA 190
- Lowndes v The Queen (1999) 195 CLR 665
- Makarian v The Queen (2006) 228 CLR 357
- Barbaro v The Queen; Zirilli v The Queen (2014) 88 ALJR 372
- Hili v R; Jones v R (2010) 242 CLR 520
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- R v Cicekdag (2004) 150 A Crim R 299
- Alvares v R; Farache v R (2011) 209 A Crim R 297
- Benitez v R (2006) 160 A Crim R 166
- Chehab v R [2015] NSWCCA 44
- Batty v R [2016] NSWCCA 121
- Purtill v R [2016] NSWCCA 80
- Aslan v R [2014] NSWCCA 114
- Ngati v R [2014] NSWCCA 125
- Lee v R [2011] NSWCCA 169
- R v Bugmy [2012] NSWCCA 223
- R v Sutton [2004] NSWCCA 225