Kowski v The King

In the matter of Kowski v The King, the applicant appealed against the sentence imposed by the County Court, arguing that the sentence was manifestly excessive and that the trial judge failed to properly consider his prospects of rehabilitation and psychological or psychiatric impairment. The applicant was convicted of multiple charges including assault occasioning bodily harm, unlawful imprisonment, and common assault. The trial judge imposed a total effective sentence of 5 years and 9 months imprisonment, with a non-parole period of 3 years and 2 months.

The primary legal issues before the court were whether the trial judge overstated the objective gravity of the offending, erred in fixing a non-parole period rather than imposing a combined sentence, and failed to take into account the applicant's psychological or psychiatric impairment in accordance with R v Verdins. The court found that the bare facts supported the conclusion that the victims would have been in fear, and that the absence of a victim impact statement did not preclude the judge from drawing inferences about the impact of the offence on the victims. The court also found that the total effective sentence and individual components were not manifestly excessive, and that the judge was not permitted to take into account whether the applicant would get parole when fixing the non-parole period.

The court further found that it was not the role of the judge to sift through the material and identify whether the Verdins factors engaged, as it was not submitted that the applicant's bipolar disorder contributed to the offending. The psychiatrist did not accept that the applicant was suffering from bipolar disorder. The court held that the trial judge did not err in finding the applicant's prospects of rehabilitation guarded, and that it was well open to conclude that the offending was too serious for a combination sentence. Leave to appeal was refused.

The court did not make any orders.