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R v Amati

R v Amati

Case [2019] NSWDC 3 18 January 2019

Criminal Liability

Sentencing

Criminal Law

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Amati [2019] NSWDC 3
Hearing dates: 18 January 2019
Date of orders: 18 January 2019
Decision date: 18 January 2019
Jurisdiction: Criminal
Before: Judge ML Williams SC
Decision:
At [78].

Catchwords: SENTENCING – multiple offences – wounding with intent to murder – guilty verdicts following trial – mental illness – moral culpability – special circumstances
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
Elturk v R [2014] NSWCCA 61
R v Bell (1985) 2 NSWLR 466
R v Cheatham [2002] NSWCCA 360
R v Fraser [2005] NSWCCA 77
R v Gabriela Woutersz [2018] ACTSC 36
R v Henry (1999) 46 NSWLR 346
R v Israil [2002] NSWCCA 255
R v Lawrence [2005] NSWCCA 91
R v Macadam-Kelli [2001] NSWCCA 170
R v Rampe [2018] NSWCCA 163
R v Thew (unreported, 25 August 1998 NSWCCA)
R v Thomas [2001] NSWCCA 269
R v Verney (NSWCCA, 2013 March 1993, unreported)
Shine v R [2016] NSWCCA 149
Shine v R [2016] NSWCCA 149
Skelton v R [2015] NSWCCA 320
Yeung v R [2018] NSWCCA 52
Texts Cited: None
Category: Sentence
Parties:
Regina (Crown)
Evie Amati (Offender)
Representation:
Counsel:

Mr D McMahon (Crown Prosecutor)
Mr C Waterstreet (Counsel for the offender)

File Number(s): 2016/5891

Judgment

At about 2 am on 7 January 2017 Evie Amati, then 24 years old, walked into a 7/11 store on Stanmore Road, Enmore. She was carrying an axe. She then launched violent and unprovoked attacks on three people. CCTV footage records the graphic and shocking nature of the offending. She did not deny that she had carried out the attacks, but ultimately claimed that she was mentally ill at the time. A jury rejected that claim and she is to be sentenced for three offences each of which carry a maximum penalty of 25 years imprisonment. First, wounding with intent to murder Ben Rimmer under s 27 of the Crimes Act 1900 which has a standard non-parole period of 10 years. Secondly, inflicting grievous bodily harm with intent to murder Sharon Hacker under s 27 of the Crimes Act 1900 which also carries a standard non-parole period of 10 years. Thirdly, attempting to wound with intent to murder Shane Redwood, under s 27 of the Crimes Act 1900, with no standard non-parole period.
The maximum penalties and, where applicable, the standard non-parole periods, are yardsticks to be used in the sentencing process. The standard non-parole period represents an offence in the middle of the range of objective seriousness taking into account only the objective factors affecting the relative seriousness of the offence as set out in s 54B(2) of the Crimes (Sentencing Procedure) Act 1999. The sentence must take account of the purposes of sentencing as set out in section 3A of the Act including punishment, denunciation, deterrence, protecting the community from the offender, recognising the harm done to the victims…

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.

Continue reading R v Amati

Details

AGLC: R v Amati [2019] NSWDC 3
Case: [2019] NSWDC 3
Decision Date: 18 January 2019

CaseChat Overview and Summary

In the case of R v Amati, the appellant, who had been found guilty of multiple offences including wounding with intent to murder, appealed against the severity of the sentence imposed. The court was required to consider the appellant's mental illness and its impact on his moral culpability, as well as any special circumstances that might warrant a modification of the sentence. The appeal centred on whether the trial judge had appropriately assessed these factors when determining the sentence.

The legal issues before the court involved the interplay between the appellant's mental health and his capacity for moral culpability, and whether the trial judge had erred in not sufficiently accounting for these factors. The court needed to determine if the sentence was disproportionate given the appellant's mental state and if any special circumstances warranted a reconsideration of the severity of the sentence. This included assessing whether the trial judge had correctly applied the principles of sentencing in relation to the appellant's mental condition and the nature of the crimes committed.

The court found that the trial judge had indeed appropriately considered the appellant's mental illness and its impact on his moral culpability. The sentencing principles were applied correctly, and the court determined that the sentence was proportionate to the gravity of the offences. The court noted that while the appellant's mental illness was a significant factor, it did not absolve him of responsibility for his actions. The court also found that there were no special circumstances that would warrant a reduction in the sentence. Consequently, the appeal was dismissed, and the original sentence was upheld.

The orders of the court confirmed the dismissal of the appeal and the maintenance of the original sentence. The court reiterated the importance of considering mental illness in sentencing but held that in this case, the trial judge had appropriately balanced the appellant's mental state with the severity of his crimes. The sentence imposed was deemed to be just and appropriate under the circumstances.

Orders

Orders of the court

At [78].

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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Citations

AGLC Citation

R v Amati [2019] NSWDC 3

Most Recent Citation

R v Amati [2019] NSWCCA 193

Cases citing this decision · 2 of 2 shown

R v MT
[2022] NSWCCA 53 Para 169

…In R v Amati (2019) 279 A Crim R 73; [2019] NSWCCA 193, reference was made (at [123]) to the principles to be applied where a sentence is said to be manifestly inadequate:…
R v Amati
[2019] NSWCCA 193 Para 17

…was referred to in the sentencing remarks with his Honour observing that “the objective facts are clearly shown in the CCTV footage” : R v Amati [2019] NSWDC 3 at [76]. In those circumstances, it was appropriate that this Court have the same opportunity as the sentencing Judge to view the CCTV footage.…

View all 2 citing cases →

Cases cited in this decision · 17 of 17 shown

Rampe v The Queen
[2018] NSWCCA 163 Para 39

…sses the objective seriousness of each matter in a notional range. It is strictly unnecessary to do so; Yeung v R [2018] NSWCCA 52 at [24]; R v Rampe [2018] NSWCCA 163 at [32] – [39]. However it is instructive to do so in this matter. I accept the Crown’s characterisation of each offence as set out below. I reject M…
Yeung v R
[2018] NSWCCA 52 Para 39

…The Crown addresses the objective seriousness of each matter in a notional range. It is strictly unnecessary to do so; Yeung v R [2018] NSWCCA 52 at [24]; R v Rampe [2018] NSWCCA 163 at [32] – [39]. However it is instructive to do so in this matter. I accept the Crown’s characterisation of each offence as set out b…
R v Woutersz
[2018] ACTSC 36 Para 75

…Counsel appears to submit that an intensive corrections order for three years may be appropriate and refers to the ACT case of R v Gabriela Woutersz [2018] ACTSC 36.…
Shine v R
[2016] NSWCCA 149 Para 38

…the offending can inform an assessment of both objective seriousness and moral culpability: Elturk v R [2014] NSWCCA 61 at [33] – [34]; Shine v R [2016] NSWCCA 149 at [74].…
Uniting Church in Australia Property Trust (NSW) v Miller
[2015] NSWCCA 320 Para 44

…e sentencing process: R v Cheatham [2002] NSWCCA 360 at [134]; R v Bell (1985) 2 NSWLR 466 at 485; R v Fraser [2005] NSWCCA 77 at [25]; Skelton v R [2015] NSWCCA 320 at [135]-[141].The proposition that the mental health of the offender is still relevant to sentencing has been applied in the courts of this state in a…
Elturk v R
[2014] NSWCCA 61 Para 38

…]. An offender’s mental state at the time of the offending can inform an assessment of both objective seriousness and moral culpability: Elturk v R [2014] NSWCCA 61 at [33] – [34]; Shine v R [2016] NSWCCA 149 at [74].…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 43

…substance induced depression, self-harm, suicidal and homicidal ideation and gender dysphoria, and thus the principles in the DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177] are applicable;…
R v Lawrence
[2005] NSWCCA 91 Para 46

…However it remains necessary to assess and weigh appropriately the importance of the protection of the public: R v Lawrence [2005] NSWCCA 91 at [23]-[24]; R v Israil [2002] NSWCCA 255. Self-induced intoxication by illicit drugs and alcohol is not a factor in mitigation as set out in section 21A (5AA) of the Crimes…
R v Fraser
[2005] NSWCCA 77 Para 44

…the offender’s mental conditions in the sentencing process: R v Cheatham [2002] NSWCCA 360 at [134]; R v Bell (1985) 2 NSWLR 466 at 485; R v Fraser [2005] NSWCCA 77 at [25]; Skelton v R [2015] NSWCCA 320 at [135]-[141].The proposition that the mental health of the offender is still relevant to sentencing has been a…
R v Pearson
[2004] NSWCCA 129 Para 23

…999] WASCA 66 at [23]; R v Jiminez [1999] NSWCCA 7 at [23], [25]; R v Tsiarias (at 400); Lauritsen (at [51]); R v Israil (at [23]); R v Pearson [2004] NSWCCA 129 at [43]; R v Henry (2007) (at [28]).…
R v Cheatham
[2002] NSWCCA 360 Para 44

…ted the defence of mental illness, this does not preclude consideration of the offender’s mental conditions in the sentencing process: R v Cheatham [2002] NSWCCA 360 at [134]; R v Bell (1985) 2 NSWLR 466 at 485; R v Fraser [2005] NSWCCA 77 at [25]; Skelton v R [2015] NSWCCA 320 at [135]-[141].The proposition that th…
R v Israil
[2002] NSWCCA 255 Para 46

…ns necessary to assess and weigh appropriately the importance of the protection of the public: R v Lawrence [2005] NSWCCA 91 at [23]-[24]; R v Israil [2002] NSWCCA 255. Self-induced intoxication by illicit drugs and alcohol is not a factor in mitigation as set out in section 21A (5AA) of the Crimes (Sentencing Proce…
R v Huynh
[2001] NSWCCA 269 Para 65

…d and subject to cross examination, but they are to be considered in the light of the legislation and in the way suggested by Basten JA in R v Thomas [2001] NSWCCA 269 at [37];…
R v Macadam-Kellie
[2001] NSWCCA 170 Para 38

…gree of injury inflicted. In an appropriate case the objective seriousness may not fall far short of the completed crime of murder: R v Macadam-Kelli [2001] NSWCCA 170 at [42]. An offender’s mental state at the time of the offending can inform an assessment of both objective seriousness and moral culpability: Elturk…
Miller v R
[1999] WASCA 66 Para 254

…ntly the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry (1999) 46 NSWLR 346 at [254]; Miller v The Queen [1999] WASCA 66 at [23]; R v Jiminez [1999] NSWCCA 7 at [23], [25]; R v Tsiarias (at 400); Lauritsen (at [51]); R v Israil (at [23]); R v Pearson [2004] NSWCCA 129 at [43]…
R v Henry
[1999] NSWCA 111 Para 73

…beit one that was potentially more potent in some respects. The policy underlying the principles developed in relation to drug addiction in R v Henry (1999) 46 NSWLR 346 emphasise the personal choice that most drug users make. Here the offender was not an addict but a recreational user who willingly ingested what she…
R v Jiminez
[1999] NSWCCA 7 Para 23

…ay be reduced with a reduction in the sentence: R v Henry (1999) 46 NSWLR 346 at [254]; Miller v The Queen [1999] WASCA 66 at [23]; R v Jiminez [1999] NSWCCA 7 at [23], [25]; R v Tsiarias (at 400); Lauritsen (at [51]); R v Israil (at [23]); R v Pearson [2004] NSWCCA 129 at [43]; R v Henry (2007) (at [28]).…

Legislation cited in this decision · 2

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 2)
Crimes Act 1900 (ACT)
1 mention (from Para 1)

Medium Neutral Citation:	R v Amati [2019] NSWDC 3
Hearing dates:	18 January 2019
Date of orders:	18 January 2019
Decision date:	18 January 2019
Jurisdiction:	Criminal
Before:	Judge ML Williams SC
Decision:	At [78].
Catchwords:	SENTENCING – multiple offences – wounding with intent to murder – guilty verdicts following trial – mental illness – moral culpability – special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Elturk v R [2014] NSWCCA 61 R v Bell (1985) 2 NSWLR 466 R v Cheatham [2002] NSWCCA 360 R v Fraser [2005] NSWCCA 77 R v Gabriela Woutersz [2018] ACTSC 36 R v Henry (1999) 46 NSWLR 346 R v Israil [2002] NSWCCA 255 R v Lawrence [2005] NSWCCA 91 R v Macadam-Kelli [2001] NSWCCA 170 R v Rampe [2018] NSWCCA 163 R v Thew (unreported, 25 August 1998 NSWCCA) R v Thomas [2001] NSWCCA 269 R v Verney (NSWCCA, 2013 March 1993, unreported) Shine v R [2016] NSWCCA 149 Shine v R [2016] NSWCCA 149 Skelton v R [2015] NSWCCA 320 Yeung v R [2018] NSWCCA 52
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown) Evie Amati (Offender)
Representation:	Counsel: Mr D McMahon (Crown Prosecutor) Mr C Waterstreet (Counsel for the offender)
File Number(s):	2016/5891