Adzioski v R

Case [2013] NSWCCA 69


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: ADZIOSKI v R [2013] NSWCCA 69
Hearing dates:13 March 2013
Decision date: 05 April 2013
Before: 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.
Legislation Cited: Crimes Act 1900 - s61H(1A), s61J(1), s61O(1A)
Cases Cited: Attorney-General's Application under section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
Benitez v R [2006] NSWCCA 21; 160 A Crim R 166
Carroll v The Queen [2009] HCA 13; 83 ALJR 579
Cole v R [2010] NSWCCA 227
Courtney v R [2007] NSWCCA 195
Devaney v R [2012] NSWCCA 285
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1
Everett v R [1994] HCA 49; 181 CLR 295
Graham v R [2009] NSWCCA 212
Lowndes v R [1999] HCA 29; 195 CLR 665
Markarian v R [2005] HCA 25; 228 CLR 357
Muldrock v The Queen [2011] HCA 39; 240 CLR 120
Papworth v R [2011] NSWCCA 253
R v Allpass [1993] 72 A Crim R 561
R v Burnett [2011] NSWCCA 276
R v Engert (1995) 84 A Crim R 67
R v Wickham [2004] NSWCCA 193
R v Wright (1997) 93 A Crim R 48
Taylor v Regina [2006] NSWCCA 7
Veen v R (No 2) [1988] HCA 14; 164 CLR 465
Yang v R [2012] NSWCCA 49
Category:Principal judgment
Parties: 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

  1. 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.

  1. 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…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

HOEBEN CJ

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Ratio Decidendi

Legal Principle Established

Established by: HOEBEN CJ

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