AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 5 August 2020

AK v Regina

[2020] NSWCCA 194

Sexual offencesAssault & violenceDomestic & family violencePublic order & justice offences

Citation: AK v Regina [2020] NSWCCA 194
Court: NSW Court of Criminal Appeal
Date: 5 August 2020
Judges: Macfarlan JA, N Adams J, Lonergan J (judgment delivered by Lonergan J)

Background

The applicant, referred to as AK, pleaded guilty partway through his trial to four serious offences against his wife and stepdaughter: two counts of detention with intent to obtain a psychological advantage, sexual intercourse without consent, and an aggravated charge of acting with intent to influence a witness to withhold evidence. Additional offences were taken into account on a Form 1 and under a s 166 Certificate, including assault, intimidation, and contravention of an apprehended domestic violence order.

The offending occurred on a single day in May 2016, three weeks after AK was released on bail for a prior domestic violence matter. AK entered the family home in breach of an AVO, detained his wife and stepdaughter for several hours, raped his wife in a locked bedroom while their young child was present, and threatened to have his wife killed if she reported the events.

Wilson SC DCJ in the District Court sentenced AK to an aggregate term of 10 years imprisonment with a non-parole period of 7 years. AK sought leave to appeal that sentence on two grounds: that the sentencing judge failed to properly account for his mental health, and that the judge failed to make a sufficient adjustment to the statutory ratio between non-parole period and head sentence in light of special circumstances and mental health considerations.

  • Whether the sentencing judge failed to take into account, or failed to give adequate weight to, the applicant's mental health as a relevant sentencing consideration
  • Whether the sentencing judge erred by not making a sufficient variation to the standard statutory ratio (between non-parole period and head sentence) when finding special circumstances and acknowledging mental health issues
  • Whether the sentencing judge was required to articulate specific reasoning quantifying the adjustment made for special circumstances

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal on both grounds.

On the first ground, the Court found that the sentencing judge had expressly considered the applicant's mental health. The psychiatric evidence indicated AK had suffered from a significant condition, but treatment in custody had produced acknowledged improvement in his mental state. Crucially, the Court noted that, whatever his mental health difficulties, AK had not been so unwell as to prevent him from planning and executing his offences with considerable resourcefulness, including timing his entry and exit to avoid detection and targeting his victims when he knew they would be present. These factors were legitimately weighed against the subjective mental health evidence in the required process of instinctive synthesis.

On the second and third grounds, the Court rejected the submission that the sentencing judge had made no effective adjustment to the statutory ratio. His Honour had expressly found special circumstances and had made what he described as a "minor adjustment," resulting in a non-parole period that was approximately six months shorter than it would otherwise have been under the standard ratio. The Court confirmed there was no requirement to provide lengthy reasons for such an adjustment, citing Brennan v R [2018] NSWCCA 22. The adjustment of six months represented a meaningful additional period on parole supervision and no error was established, whether manifest or otherwise.

Orders Made

  • Leave to appeal sentence granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge dealing with mental health evidence is not required to give it determinative weight where the offending itself demonstrates that the offender retained the capacity for calculated and resourceful criminal conduct.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a "minor adjustment" to the statutory non-parole period ratio is sufficient where special circumstances are found, provided the adjustment is actually made and produces a meaningful difference in the time spent under parole supervision.
  • Under the principles in Brennan v R, a sentencing judge is not required to provide detailed or lengthy reasons for the degree of adjustment made when varying the statutory ratio for special circumstances.
  • Sentencing involves instinctive synthesis, meaning that mental health considerations must be weighed against countervailing factors including the nature, planning, and gravity of the offending rather than treated as a mathematical "plus and minus" exercise.
  • No error, whether manifest or otherwise, was established in structuring an aggregate sentence of 10 years with a 7-year non-parole period for a serious course of domestic violence offending involving detention, rape, and witness interference.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 86(1)(b), 111(1), 323(a), 324
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 13, 14
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Procedure Act 1986 (NSW), ss 166

Cases:
- Brennan v R [2018] NSWCCA 22
- Briggs v R [2010] NSWCCA 250
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Etchell v R (2010) 205 A Crim R 138; [2010] NSWCCA 262
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- R v Baker [2000] NSWCCA 85
- R v Cramp [2004] NSWCCA 264
- R v Engert (1995) 84 A Crim R 67
- R v Fidow [2004] NSWCCA 172
- R v GDR (1994) 35 NSWLR 376
- R v GWM [2012] NSWCCA 240
- R v Simpson (2000) 153 NSWLR 704; [2001] NSWCCA 534
- The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
- Wakefield v R [2010] NSWCCA 12