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Court of Criminal Appeal 5 March 2021

Korovou v R

[2021] NSWCCA 28

Assault & violencePublic order & justice offences
CRIM INAL LAW SENTENCE APPEAL AGAINST SENTENCE APPEAL DISMISSED

Citation: Korovou v R [2021] NSWCCA 28
Court: NSW Court of Criminal Appeal
Date: 5 March 2021
Judge(s): Hoeben CJ at CL, Bellew J, Wright J (judgment delivered by Wright J)

Background

The applicant pleaded guilty in the Local Court to two serious offences: detaining a person in company with intent to obtain an advantage while occasioning actual bodily harm, and detaining a second person in company with intent to obtain an advantage. A further offence of armed robbery was taken into account on a Form 1. The offending arose from a planned and violent incident on 20 February 2019 in which the applicant, his brother, and a third man detained two victims for approximately four hours and 45 minutes, subjecting the principal victim to sustained physical assault, threats with weapons, and psychological terror.

Sentence was imposed in the District Court at Sydney on 3 April 2020. The applicant received a head sentence of six years with a non-parole period of three years and eight months on the principal count, along with a concurrent fixed term of two years on the second count. The effective total was a head sentence of six years and four months with a non-parole period of four years.

The applicant sought leave to appeal on the ground that the sentencing judge had failed to properly consider his diagnosis of post-traumatic stress disorder (PTSD) in accordance with sentencing principles, and had also failed to give adequate reasons for how the diagnosis was taken into account.

  • Whether the sentencing judge erred by failing to give proper consideration to the applicant's PTSD diagnosis as a factor in sentencing.
  • Whether the sentencing judge failed to provide adequate reasons for her treatment of the PTSD diagnosis.
  • Whether an affidavit containing fresh psychological evidence could be admitted on appeal, and whether its non-production at first instance caused a miscarriage of justice.

Decision

The Court of Criminal Appeal examined the sentencing judge's remarks in detail. Her Honour had acknowledged the applicant's PTSD diagnosis and had referred to the adverse experiences in his upbringing, including harsh discipline, as matters warranting some amelioration of sentence. The Court found that the sentencing judge had, in substance, addressed the PTSD diagnosis as part of a broader consideration of the applicant's background and personal circumstances.

Critically, no psychiatric evidence had been placed before the sentencing court, and no evidence established a causal connection between the PTSD diagnosis and the commission of the offences. The Court confirmed that where such material is absent, the sentencing principles that might otherwise reduce the weight given to general deterrence or increase the relevance of the offender's mental health are simply not engaged at a level that would ground a successful appeal.

On the adequacy of reasons, the Court found the sentencing judge's remarks were sufficiently comprehensive. The applicant's argument on appeal also departed from the case put at first instance, a matter the Court regarded as a further reason to view the ground with caution.

Regarding the fresh affidavit containing psychological evidence, the Court declined to admit it. There was no explanation for why the evidence had not been obtained before sentencing, and the Court found that even if some error had occurred in the sentencing process, no injustice had resulted given the overall comprehensiveness of the sentencing remarks and the sentences imposed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A PTSD diagnosis alone, without supporting psychiatric evidence and without evidence of a causal connection to the offending, does not automatically require a sentencing judge to apply sentencing principles that would reduce the weight given to general deterrence or treat the diagnosis as a significant mitigating factor.
  • Where a sentencing judge addresses an offender's adverse background and personal circumstances in comprehensive reasons, a mere failure to use specific language about PTSD will not ordinarily constitute error, provided the substance of the relevant considerations has been addressed.
  • Adequate reasons do not require exhaustive treatment of every piece of evidence; the sentencing judge's overall remarks are assessed as a whole to determine whether relevant matters were genuinely considered.
  • Departing on appeal from the case put at first instance weakens an appeal ground, particularly where the departure cannot be supported by fresh evidence that was properly admissible.
  • In dismissing the application to admit fresh psychological evidence, the Court of Criminal Appeal applied established principles requiring explanation for non-production of evidence at first instance, and confirmed that an absence of such explanation will ordinarily defeat an application to adduce new evidence on a sentence appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- Aslan v R [2014] NSWCCA 114
- Barbieri v R [2016] NSWCCA 295
- Griffin v R [2018] NSWCCA 259
- Harkin v R [2020] NSWCCA 242
- Khoury v R [2011] NSWCCA 118; 209 A Crim R 509
- Lambkin v R [2020] NSWCCA 327
- Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49
- OGC v R [2016] NSWCCA 254
- Zreika v R [2012] NSWCCA 44; 223 A Crim R 460