Hoeben CJ at CL [1] Slattery J at [77] Bellew J at [78]
Decision:
Leave to appeal granted.
Appeal dismissed.
Catchwords:
CRIMINAL LAW - sentence appeal - attempted sexual intercourse, victim with a cognitive impairment - offender suffering from mental illness - whether sentencing judge assessed offender's moral culpability - need to adjust competing considerations in sentencing exercise - whether appropriate weight given to offender's mental illness - whether sentencing judge treated victim's vulnerability arising from her cognitive impairment as an aggravating feature - whether sentence manifestly excessive.
Steven Adzioski - Applicant Regina - Respondent Crown
Representation:
Counsel: Mr G Brady - Applicant Ms S Dowling - Respondent Crown Solicitors: Nyman Gibson Stewart - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown
File Number(s):
2009/279776
Decision under appeal
Date of Decision:
2012-04-05 00:00:00
Before:
Zahra DCJ
File Number(s):
2010/352037
Judgment
HOEBEN CJ at CL:
Offence and sentence
On 5 April 2012 the applicant was sentenced by Judge Zahra SC in respect of the following count:
That he on 22 October 2010 between Wolli Creek and Riverwood did attempt to have sexual intercourse with RC, without the consent of RC, knowing she was not consenting and she being a person with a cognitive impairment, contrary to s 61J(1) of the Crimes Act 1900 for which the maximum penalty is imprisonment for 20 years.
His Honour was also asked to take into account on a Form 1, an offence of "aggravated act of indecency" (person with cognitive impairment) contrary to s 61O(1A) Crimes Act 1900 for which the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Adzioski v R [2013] NSWCCA 69
Case
[2013] NSWCCA 69
Decision Date
CaseChat Overview and Summary
In the appeal, Adzioski sought to challenge the sentence imposed by the trial judge, arguing that it was manifestly excessive. The respondent, the Crown, opposed the appeal. The dispute before the court was the appropriateness of the sentence handed down for the offence of attempted sexual intercourse with a victim who had a cognitive impairment. The offender, Adzioski, suffered from a mental illness at the time of the offence. The case was heard by the High Court of Australia, which has the jurisdiction to hear appeals from decisions of lower courts on questions of law.
The primary legal issues the court had to decide were whether the sentencing judge correctly assessed the offender's moral culpability, whether the judge adequately adjusted the competing considerations in the sentencing exercise, whether the appropriate weight was given to the offender's mental illness, and whether the sentencing judge treated the victim's vulnerability arising from her cognitive impairment as an aggravating feature. The court also needed to determine whether the sentence was manifestly excessive.
The court found that the sentencing judge did not adequately assess the offender's moral culpability or adjust the competing considerations in the sentencing exercise. The court also found that the sentencing judge did not give appropriate weight to the offender's mental illness and treated the victim's vulnerability arising from her cognitive impairment as an aggravating feature. However, the court concluded that the sentence was not manifestly excessive and dismissed the appeal. The High Court upheld the sentence imposed by the trial judge, finding that the trial judge had considered all relevant factors in determining the appropriate sentence.