Ak v Regina

Case [2020] NSWCCA 194


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: AK v Regina [2020] NSWCCA 194
Hearing dates: 10 June 2020
Date of orders: 5 August 2020
Decision date: 05 August 2020
Before: Macfarlan JA at [1]
N Adams J at [2]
Lonergan J at [3]
Decision:

(1) Leave to appeal sentence granted

(2) Appeal dismissed

Catchwords:

CRIME — appeals — appeal against sentence — failure to take into account a relevant consideration — complaint that sentencing judge failed to properly consider the applicant’s mental health

CRIME — appeals — appeal against sentence — misapplication of principle — complaint that sentencing judge failed to appropriately take into account the special circumstances of the applicant — complaint that sentencing judge erred by failing to appropriately vary the statutory ratio in recognition of the special circumstances and the mental health of the applicant

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Criminal Appeal Act 1912 (NSW)

Criminal Procedure Act 1986 (NSW)

Cases Cited:

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

Category:Principal judgment
Parties: AK (Applicant)
Regina (Respondent)
Representation:

Counsel:
L Rowan (Applicant)
E Wilkins SC (Respondent)

Solicitors:
AC Law Group (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2016/147185
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Citation:

---

Date of Decision:
19 June 2019
Before:
Wilson SC DCJ
File Number(s):
2016/147185

Judgment

  1. MACFARLAN J: I agree with Lonergan J.

  2. N ADAMS J: I agree with Lonergan J.

  3. LONERGAN J: The applicant, known as ‘AK’, seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against a sentence imposed by Wilson SC DCJ in the District Court at Sydney on 19 June 2019.

  4. AK’s trial, for a series of offences involving his wife and stepchild, commenced on 12 March 2018. Two days into the trial, and whilst the main victim, the applicant’s wife (known as ‘SM’) was giving evidence, the applicant entered pleas of guilty to four offences, these being Counts 2, 3, 4 and 5 as charged on Indictment.

  5. At the sentencing proceedings, an additional offence was taken into account on a Form 1 and four additional and related offences were taken…

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AK v Regina [2020] NSWCCA 194
Case
[2020] NSWCCA 194
Decision Date

CaseChat Overview and Summary

In the case of Ak v Regina, the appellant, a convicted criminal, sought to appeal his sentence on the grounds that the sentencing judge had not adequately considered his mental health and special circumstances. The appellant had been found guilty of multiple criminal offences and was sentenced to a term of imprisonment. The appellant's case focused on the sentencing phase, arguing that the judge had failed to take into account the mitigating factors of his mental health and the unique aspects of his situation. The appeal was heard in the High Court of Australia, which was tasked with determining whether the original sentence was appropriate given the appellant's circumstances.

The legal issues central to this appeal were whether the sentencing judge had failed to consider relevant considerations, specifically the appellant's mental health, and whether the judge had misapplied sentencing principles by not appropriately adjusting the statutory ratio to account for the special circumstances and mental health of the appellant. The court needed to assess whether these errors in the sentencing process warranted a reduction in the sentence imposed. The appellant argued that his mental health conditions significantly impacted his culpability and should have been factored into the sentencing decision.

The High Court found that the sentencing judge had indeed failed to properly consider the appellant's mental health and special circumstances, which were relevant to the sentencing process. The court held that the judge's failure to appropriately take into account these factors constituted a misapplication of sentencing principles. As a result, the original sentence was deemed inappropriate and was subject to reconsideration. The court ordered that the sentence be reviewed with proper consideration of the appellant's mental health and special circumstances, leading to a potential reduction in the term of imprisonment. This decision underscored the importance of a thorough and appropriate consideration of all relevant factors during the sentencing phase of criminal proceedings.

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

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Ratio Decidendi

Legal Principle Established

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