Citation: R v Kihara [2020] NSWDC 88
Court: District Court of NSW
Date: 2 April 2020
Judge(s): Mahony SC DCJ
Background
The offender, a man in his mid-40s with a long history of mental illness and substance abuse, was sentenced for detaining and assaulting a female acquaintance at his Redfern unit on 20 January 2019. He had suspected the victim of stealing his guitar and, after she helped him home while he was heavily intoxicated, locked his front door and detained her to extract information about the guitar's whereabouts.
The offending escalated rapidly. The offender struck the victim over the head with a wooden chair, pursued her onto the balcony when she fled and screamed for help, and then threw her from the first-floor balcony onto a concrete car park 5.4 metres below. Multiple neighbours witnessed the incident and called emergency services. The victim suffered significant injuries but was discharged from hospital the following day.
The offender had pleaded guilty and was sentenced in March 2020, having remained in custody from the date of his arrest. He had an extensive criminal history dating to 1995 and had been on bail for two other charges at the time of the offence.
Legal Issues
- What was the appropriate objective seriousness of the offending under s 86(2)(b) of the Crimes Act 1900?
- What aggravating and mitigating factors applied under s 21A of the Crimes (Sentencing Procedure) Act 1999?
- How should the offender's significant mental illness affect the sentencing exercise, particularly in relation to moral culpability, general deterrence, and specific deterrence?
- Whether special circumstances existed justifying a variation of the statutory non-parole period ratio under s 44(2) of the CSPA.
- What utilitarian discount applied for the early guilty plea?
Decision
Objective seriousness:
The court found the offending fell within the mid-range of objective seriousness for an offence under s 86 (at [52]). Applying the factors identified in R v Newell, the court considered the relatively short period of detention a mitigating feature, but found this was outweighed by the victim's vulnerability, her being locked inside the unit, the multiple assaults while she pleaded for help, and the serious physical injuries caused by the fall (at [51]-[52]). The court accepted the characterisation of the experience as "an absolutely terrifying ordeal for the victim" (at [52]).
Aggravating and mitigating factors:
The court found a number of statutory aggravating factors under s 21A(2) (at [53]). On the mitigating side, the court identified relevant mitigating factors under s 21A(3) (at [54]), but declined to treat the offender's self-induced intoxication as mitigation, as required by s 21A(5AA) of the CSPA (at [55]). A 25% utilitarian discount was applied for the early guilty plea (at [55]).
Mental illness and sentencing principles:
Applying the principles from DPP (Cth) v De La Rosa, the court reduced the offender's moral culpability because his mental illness, combined with the disinhibiting effects of alcohol, contributed to the offending (at [58]). The court accepted that the offender was not an appropriate vehicle for general deterrence (at [58]). However, specific deterrence remained significant given the need to protect the public from an offender with a treatment-resistant illness, a history of violent conduct, and poor engagement with mental health services (at [59]). The court also acknowledged that incarceration would be more onerous for the offender than for a person without mental illness, warranting a further reduction in sentence (at [60]).
Special circumstances:
The court found special circumstances established under s 44(2) of the CSPA based on the offender's mental illness and the need for careful, lengthy supervision upon his return to the community (at [61]). This justified varying the statutory ratio between the head sentence and the non-parole period.
Orders Made
- The offender was convicted of detaining with intent to obtain advantage and occasioning actual bodily harm, contrary to s 86(2)(b) of the Crimes Act 1900.
- Head sentence of 3 years and 9 months imprisonment.
- Non-parole period of 2 years, commencing 20 January 2019 and terminating 19 January 2021.
- Balance of term of 1 year and 9 months, commencing 20 January 2021 and terminating 19 October 2022.
Key Takeaways
- In assessing objective seriousness under s 86, the District Court applied the Newell factors (period of detention, circumstances, the person detained, and purpose of detention), confirming that no single factor is conclusive, including the nature of the advantage sought (at [51]-[52]).
- A short duration of detention does not automatically reduce an offence to below mid-range seriousness where other features, such as multiple assaults, a locked environment, and serious physical harm, are present (at [52]).
- Under the De La Rosa principles, mental illness can reduce an offender's moral culpability, diminish the role of general deterrence, and increase the recognised burden of imprisonment, each operating as a distinct and separate basis for sentence reduction (at [58]-[60]).
- Self-induced intoxication cannot be treated as a mitigating factor under s 21A(5AA) of the CSPA, even where an offender's mental illness also contributed to the offending (at [55]).
- Special circumstances under s 44(2) of the CSPA may be established by the combination of serious, treatment-resistant mental illness and the consequent need for extended supervision on parole, justifying a departure from the standard non-parole period ratio (at [61]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999
Cases
- Diaz v R [2018] NSWCCA 33
- DPP(Cth) v De La Rosa [2010] NSWCCA 194
- Johnson v R [2016] NSWCCA 286
- R v Newell [2004] NSWCCA 183