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District Court 18 January 2019

R v Amati

[2019] NSWDC 3

Assault & violenceHomicide
SENTENCING MULTIPLE OFFENCES WOUNDING WITH INTENT TO MURDER GUILTY VERDICTS FOLLOWING TRIAL MENTAL ILLNESS MORAL CULPABILITY

Citation: R v Amati [2019] NSWDC 3
Court: District Court of New South Wales
Date: 18 January 2019
Judge: Judge ML Williams SC

Background

In the early hours of 7 January 2017, a 24-year-old woman entered a convenience store in Enmore, Sydney, carrying an axe and attacked three strangers without provocation. The attacks were captured on CCTV and described by the sentencing judge as graphic and shocking. Two victims suffered serious physical injuries; a third was subjected to an attempted attack.

The offender did not dispute that she carried out the attacks, but at trial she raised mental illness as a complete defence. A jury rejected that defence and returned guilty verdicts on all three counts. The matter then proceeded to sentence before Judge Williams SC in the District Court.

The offender's background was explored in considerable detail during the trial. She had experienced gender dysphoria from a young age, underwent gender reassignment surgery in 2016, and had a documented history of depression, suicidal ideation, and increasing reliance on anti-depressant medication. On the night of the offending, she had consumed alcohol and a substance believed to be MDMA (later identified as MDA). A distressing interaction on a dating app shortly before the attacks appeared to have preceded her state of mind at the time.

  • What aggregate sentence and non-parole period were appropriate for three offences under s 27 of the Crimes Act 1900, each carrying a maximum penalty of 25 years imprisonment?
  • To what extent did the offender's mental illness, personal history, and subjective circumstances reduce her moral culpability?
  • Did the offender's circumstances warrant a finding of special circumstances, justifying a departure from the standard ratio between non-parole period and head sentence?
  • Was full-time imprisonment necessary, or could an alternative sentencing order such as an intensive corrections order be appropriate?

Decision

Judge Williams SC sentenced the offender following a synthesis of the objective seriousness of the offending and the offender's subjective circumstances. The attacks were objectively very serious: they were unprovoked, carried out with a weapon, and caused significant harm to the victims. The standard non-parole period of 10 years for offences under s 27 of the Crimes Act 1900 served as a yardstick, representing a mid-range offence assessed on objective factors alone.

The court accepted that the offender's mental illness, personal history, and subjective circumstances reduced her moral culpability to a meaningful degree. Her documented psychiatric history, the trauma associated with her gender transition, her social isolation in the period leading up to the offending, and her consumption of drugs on the night were all accepted as relevant mitigating factors. However, the court rejected the submission that mental illness should be elevated to a paramount position in the sentencing exercise, finding that to do so would largely ignore the statutory purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.

The court also rejected the submission that an intensive corrections order would be appropriate. Despite the offender having served more than two years on remand by the time of sentencing, the combination of the objective gravity of the offending and the purposes of sentencing, including punishment, denunciation, deterrence, and community protection, required a significant period of full-time imprisonment.

A finding of special circumstances was made, which in NSW allows the court to set a non-parole period that represents a lower proportion of the head sentence than the standard one-third minimum. This reflected the court's view that the offender would require an extended period of supervised parole to support her rehabilitation and reintegration.

Orders Made

  • The offender was convicted of each offence.
  • An aggregate sentence of nine years imprisonment was imposed, commencing 7 January 2017.
  • A non-parole period of four years and six months was set, with eligibility for parole from 6 July 2021.
  • Indicative sentences:
  • Count 1 (wounding with intent to murder): seven years, with a four-year non-parole period.
  • Count 3 (inflicting grievous bodily harm with intent to murder): six years and six months, with a three-year and six-month non-parole period.
  • Count 5 (attempting to wound with intent to murder): five years.
  • Special circumstances were found.

Key Takeaways

  • Mental illness and reduced moral culpability are relevant mitigating factors in sentencing, but the District Court held they do not displace the full range of statutory sentencing purposes under s 3A of the Crimes (Sentencing Procedure) Act 1999, including punishment, denunciation, and community protection.
  • A jury's rejection of a mental illness defence at trial does not preclude the sentencing court from treating the offender's psychiatric history and impaired mental state as factors reducing moral culpability at the sentencing stage.
  • Where the objective gravity of the offending is high, full-time imprisonment may remain mandatory even where subjective circumstances are compelling and the offender has served significant time on remand.
  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 permitted the court to set a non-parole period that was proportionally lower than the standard, reflecting the offender's rehabilitation needs and the anticipated demands of supervised parole.
  • The standard non-parole period operates as a legislative yardstick representing a mid-range offence, assessed by reference to objective factors only, and must be adjusted in light of the full range of subjective circumstances before the court.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 27
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 54B(2)

Cases:
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Elturk v R [2014] NSWCCA 61
- R v Bell (1985) 2 NSWLR 466
- R v Cheatham [2002] NSWCCA 360
- R v Fraser [2005] NSWCCA 77
- R v Gabriela Woutersz [2018] ACTSC 36
- R v Henry (1999) 46 NSWLR 346
- R v Israil [2002] NSWCCA 255
- R v Lawrence [2005] NSWCCA 91
- R v Macadam-Kelli [2001] NSWCCA 170
- R v Rampe [2018] NSWCCA 163
- R v Thew (unreported, NSWCCA, 25 August 1998)
- R v Thomas [2001] NSWCCA 269
- R v Verney (unreported, NSWCCA, March 1993)
- Shine v R [2016] NSWCCA 149
- Skelton v R [2015] NSWCCA 320
- Yeung v R [2018] NSWCCA 52