(iii) in lieu of the sentence imposed on 16 March 2012, the applicant is sentenced to a minimum term of 18 years imprisonment commencing on 24 February 2010 and expiring on 23 February 2028 with an additional term of 7 years expiring on 23 February 2035.
Catchwords:
CRIMINAL LAW - appeal - where medical evidence on sentence did not establish causal link between applicant's mental state and offending - where submission made to sentencing judge as to the applicant's mental state was confined to its effect upon general deterrence - where it was sought to be argued on appeal that applicant's mental state was relevant to an assessment of moral culpability - whether judge erred in failing to take into account the applicant's mental state
CRIMINAL LAW - sentence - parity - where applicant committed offence in the course of joint criminal enterprise with his father - where term of imprisonment imposed upon the applicant was more than that imposed on his father - whether applicant had a justifiable sense of grievance
CRIMINAL LAW - sentence - applicant sentenced to a minimum term of 18 years imprisonment with an additional term of 7 years imprisonment - where no challenge to findings of the sentencing judge that the murder was pre-meditated, involved the use of weapons and was carried out with an intention to kill - whether sentence manifestly excessive
CRIMINAL LAW - sentence - where applicant taken into custody overseas pending his extradition to Australia to be charged with the deceased's murder - where sentence imposed was backdated to his arrival in Australia rather that to the date on which he was taken into custody - error corrected
[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
Iskandar v R [2013] NSWCCA 235
Case
[2013] NSWCCA 235
Decision Date
CaseChat Overview and Summary
The case before the court was an appeal by the applicant, Iskandar, against his conviction and sentence for the murder of his wife. The murder was a premeditated act involving the use of weapons and was carried out with an intention to kill. Iskandar's appeal focused on three primary issues: the failure of the sentencing judge to consider his mental state in determining his moral culpability, the disparity in the sentences imposed on him and his father who was also involved in the crime, and the calculation of the backdated sentence.
The legal issues before the court were whether the sentencing judge erred in not taking into account Iskandar's mental state in assessing his moral culpability, if the disparity in the sentences imposed was justifiable, and whether the sentence was manifestly excessive. The court had to determine if the evidence provided was sufficient to establish a causal link between Iskandar's mental state and his offending, and whether this was relevant to his culpability. Additionally, the court needed to consider if the applicant's sense of grievance regarding the disparity in sentences was justified and whether the backdated sentence was correctly applied.
The court found that there was no error in the sentencing judge's failure to consider Iskandar's mental state as the argument on appeal was different from the submission made at sentencing. The court held that the disparity in sentences did not give rise to a justifiable sense of grievance as it was based on the respective roles and culpability of the applicants. The court also determined that the sentence, while severe, was not manifestly excessive given the nature of the crime. Finally, the court corrected the error in backdating the sentence to the applicant's arrival in Australia rather than the date of his custody overseas.
The court dismissed the appeal and affirmed the conviction and sentence imposed on Iskandar. The sentence was to run from the date of his arrival in Australia, and no other orders were made.