R v Koomson
[2001] NSWCCA 176
•9 May 2001
NEW SOUTH WALES CRIMINAL COURT OF APPEAL
CITATION: R v Koomson [2001] NSWCCA 176
FILE NUMBER(S):
60736/99
HEARING DATE(S): 9.5.01
JUDGMENT DATE: 09/05/2001
PARTIES:
Regina
Otis Koomson
JUDGMENT OF: Carruthers AJ Badgery-Parker AJ
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 99/11/0490
LOWER COURT JUDICIAL OFFICER: W D Hosking DCJ
COUNSEL:
L M B Lamprati (Crown)
D N Stewart (Applicant)
SOLICITORS:
S E O'Connor (Crown)
Ross Hill & Associates (Applicant)
CATCHWORDS:
Sentencing - Appeal against severity - malicious wounding with intent to inflict grievous bodily harm - Whether judge gave sufficient weight to appellant's depressive condition.
LEGISLATION CITED:
Crimes Act 1900
DECISION:
Leave to appeal granted. Appeal dismissed.
JUDGMENT:
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CARRUTHERS AJ: Otis Koomson seeks leave to appeal against a sentence imposed upon him by his Honour Judge WD Hosking QC at the Parramatta District Court on 26 November 1999. The applicant had earlier pleaded guilty to one count of malicious wounding with intent to inflict grievous bodily harm pursuant to s 33 of the Crimes Act 1900, as amended. This offence carries a maximum penalty of imprisonment for 25 years. His Honour sentenced the applicant to a minimum term of four years penal servitude, to commence on 20 January 1999 and to expire on 19 January 2003, and imposed an additional term of three years to commence on 20 January 2003 and to expire on 19 January 2006.
The applicant was born on 15 June 1956 in Ghana and was accordingly 42 years of age when the subject offence was committed on 20 January 1999.
The applicant has stated that he was born in a Ghanian family of high standing within the village where he was raised. He claims that he is successor to his father's position as King. His father died in 1986 and his mother died in 1987. It would appear that this distinguished heritage has created some tension in the applicant's life.
The applicant came to Australia in 1986 from Japan where he claims he spent two years studying Japanese. He became a naturalised Australian citizen in 1991. He has two children living in Ghana from separate relationships and he has claimed that he remits money for their care when he can.
The applicant met his current wife in Australia and they married in 1993. There is a young son from that relationship. There is a history of violence towards his wife, the victim of the subject offence, dating back to when they married.
Whilst in Australia the applicant appears to have been in regular employment in Victoria and in Sydney in various unskilled positions before opening a hairdressing salon in Newtown with his wife in 1993.
The applicant informed his probation and parole officer on or about 11 October 1999 that he had heard voices, on at least four occasions, instructing him to kill himself. The applicant believes that this is because he offended his ancestors. There is no history of drug or alcohol abuse.
The only prior criminal record of the applicant is that on 12 March 1997 at Burwood Local Court, he was granted a recognizance to be of good behaviour for twelve months with regard to an offence of common assault, the victim being his wife.
In so far as the present offence is concerned, the Fact Sheet before the sentencing judge was, by consent, edited, and I set out hereunder the edited version:
"In November, 1998 the victim's mother died in their native land of Ghana. It is a tradition in Ghana that any son-in-laws of deceased persons assist in paying for the funeral. The defendant refused to provide this assistance and suggested to the victim that they get a divorce as he did not wish to continue with tradition. The victim agreed as she had not been happy with the marriage for quite some time.
It would appear that the defendant's suggestion was an attempt at `emotional blackmail' as the victim's agreeance with the divorce upset him. Since that time he has made repeated threats to take his own life in an attempt to obtain attention from the victim. Approximately two weeks ago, the defendant was hospitalised for taking a number of pills. However, he informed people of his intent and was found before any serious harm had been done.
About 2am on Wednesday, 20 January 1999, the defendant and victim, Alice Koomson, were involved in another verbal about the defendant threatening to take his own life. The victim called the police who attended their residence at 13/503 King Street, Newtown. The defendant left with some of his belongings, stating that he was going to spend the night at his shop in King Street, Newtown.
About 5.40am that morning the defendant climbed up onto the balcony of the unit. He was armed with a claw hammer and at the time the unit was occupied by the victim, the defendant's son, Prince Koomson, and his step-daughter, Ruth Sarpong. The defendant has then smashed the glass in the sliding balcony door and entered the premises. He has then gone straight up to the victim, who was in the lounge room, and began to hit her with the claw hammer and stab her with a knife. It is not known where the defendant obtained the knife from. The defendant stabbed and hit the victim about the facial and back region on numerous occasions. The victim has then staggered into her bedroom where she has pleaded for her life as she felt she was going to be killed. The defendant has then struck numerous blows to the arms and back region with both the knife and the hammer.
At this point, Ruth Sarpong has awoken due to her mother screaming. She has entered her mother's bedroom to find the victim on her back on the floor. There was blood on the victim's face and clothing. The defendant was standing over the victim with the hammer raised over his head. Ruth has stood in front of the defendant in an attempt to protect the victim. She has tried to grab the hammer from the defendant but could not reach it. Ruth has then gone behind the defendant to grab the hammer however, the defendant hit her so that she fell back against the wall. The defendant has then struck the victim with the hammer on the head with his right hand. Ruth yelled out to him, `Don't kill my mother.'
The four year old son, Prince Koomson, has then come out and seen his mother. He started crying and yelled out, `Stop it daddy, stop it daddy.' Both Prince and Ruth have then run into the lounge room. The defendant has then grabbed the victim on the right arm with his left hand and dragged her out into the lounge room. While he was dragging her, he kept hitting her with the hammer on the back and face. The victim lent up against a wall in the lounge room and the defendant continued to hit her with the hammer about her body. The victim stopped crying and Ruth thought that her mother was dead. Ruth then struggled with the defendant and he dropped the hammer. Ruth picked up the hammer and opened the door which leads to the stairwell and the exit from the apartments. The victim then began to cry again and started trying to walk out of the unit but fell a number of times on the way. Ruth began to talk to the defendant and he promised her that he would not hit the victim any more. As a result, Ruth gave the hammer back to the defendant. He pushed Ruth out of the way and went up to the victim who was sitting at the top of the stairs. The defendant then hit the victim on the back with the hammer. Ruth Sarpong ran out to the stairs and saw a stream of blood coming out of her mother's back. The victim began to scream and the defendant pushed her down the stairs. She ended up with her head on the bottom of the stairs with her legs pointing up the stairs. At this stage, the defendant ran off, dropping the hammer as he left. Ruth Sarpong then gathered her four year old half-brother and assisted the victim to her feet. They then waved down a vehicle, the driver of which drove the victim to Royal Prince Alfred Hospital where she was admitted.
Upon leaving the premises, the defendant has walked up King Street, Newtown into Camden Street. He has walked up a laneway that leads to Salmon Park, Newtown. He was seen to pick up some wine bottles in this laneway and enter the park where he smashed the bottles. He was then seen to fall to the ground.
A short time later the defendant has banged on the front door of 95 Station Street, Newtown. The door was answered by the occupier, Alyson Hickey. It is alleged that the defendant said to her, `They bashed me.' When asked who, he replied, `My wife, my wife. They called the police to kick me out of the house and then they bashed me and then they robbed me.' The defendant was then conveyed to Royal Prince Alfred Hospital by ambulance where he was admitted.
A search of 13/503 King Street, Newtown revealed a large amount of blood in the stairwell, lounge room and the victim's bedroom. The glass sliding door had been smashed and a knife with a bent blade was located in the victim's bedroom on the floor. There was an amount of blood on the blade of the knife.
As a result of this incident, the victim suffered from numerous lacerations to her forehead, lip, back and arms. She also has heavy bruising in similar regions.”
This summary is eloquent of the seriousness of the subject offence.
On 14 April 1999 the applicant was examined by Doctor Bruce Westmore, forensic psychiatrist, who prepared a report dated 16 April 1999.
Doctor Westmore concluded in that report that the history given to him by the applicant strongly supported a diagnosis of a depressive illness. He categorised it as a "major depressive illness". He said, however, that a differential diagnosis would include major depression with psychotic features or, alternatively, depression.
Doctor Westmore commented that whilst the applicant described auditory hallucinations which had a command quality to them, the commands were more of a self-harm nature than directing him to harm others. Doctor Westmore thought that the depressive illness played a significant role in the applicant's behaviour.
Doctor Westmore re-examined the applicant on 20 October 1999 and prepared a further report on 21 October 1999,in which he concluded:
"This man has had a depressive condition, he was diagnostically complex partly because of the impact cultural factors had on his presentation. The most likely final diagnosis is that of a major depression/severe adjustment disorder with a depressed mood (now in full remission)".
Doctor Westmore stated further that on presentation:
"His affect was warm, engaging and reactive. His mood state shows no evidence of clinical depression and no psychotic features were identified.”
Thus the final conclusion demonstrates that there was no evidence of a psychosis related to the applicant's serious criminal conduct, albeit there was evidence of depression. Probably, Doctor Westmore thought, of a biological nature . Indeed, as Mr Stewart, in his forceful and helpful submissions on behalf of the applicant has stressed, the applicant reacted very favourably to the medication administered as part of the applicant's psychiatric treatment, which supported that particular diagnosis. There was evidence before his Honour of self-harm inflicted by the applicant both prior to and subsequent to the date of the offence.
At 6.58am on 20 January 1999, the applicant was taken to the Royal Prince Alfred Hospital Emergency Department with an apparent stab wound to the left side of the chest. He had an uncomplicated post-operative recovery after being treated with antibiotics. He was transferred on 29 January 1999 to the Corrective Services Hospital.
When sentencing the applicant, his Honour said:
"The prisoner's frail mental condition is highly influential but far from overwhelming in assessing the level of punishment. The brutality and cruelty of the attack must stand at the forefront of any assessment of his criminality. However, given the uncontradicted and uncontested assessment of the distinguished psychiatrist, Doctor Westmore, there is a strong theme of psychiatric disturbance. There is also a basis for some measure of optimism as to his future well-being.
The very frenzy of the attack bespeaks a degree of mental disturbance. The clinical, cold blooded deliberation of the bomber or poisoner is absent here. The prisoner's then mental state of imbalance is a mitigating feature. His criminal responsibility is diminished and allows the imposition of a lesser punishment than would otherwise be called for. That mental condition permits the important considerations of general and particular deterrence to be assigned a slightly lesser role. Particular deterrence is a very real consideration given his prior conviction for assaulting his wife, although it would seem that that marriage is well and truly over.
I accept that the prisoner is unlikely to re-offend in the future. His criminal status is the result of his inability to accept the status of women in this society and his inability to react to domestic discord. He seems to be basically a decent man who was dedicated to his employment and to the local Ghanian community."
His Honour considered questions of rehabilitation and the desirability of an extended period of supervision of the applicant, and, of course, he referred to the principle of deterrence.
Mr Stewart has focused upon the following from his Honour’s remarks:
"That mental condition permits the important considerations of general and particular deterrence to be assigned a slightly lesser role.”
Mr Stewart submits that his Honour there erred, to the detriment of the applicant, because his Honour misunderstood the principles enunciated by this Court in a number of cases, all of which are now well known, such as R v Wright (1997) 93 A Crim R 48, R v Bus (unreported 3 November 1995) and R v Engert (1995) 84 A Crim R 67. He also referred to R v Fahda [1999] NSWCCA 267.
In my view, the factual circumstances in R v Fahda clearly distinguish that case from the present. In Fahda the evidence of psychiatric disorder was very strong, extending to a diagnosis of schizophrenic illness plus a pathological jealousy syndrome. In R v Scognamiglio (1991) 56 A Crim R 81 at 86, this Court (Clarke JA, Grove and Newman JJ) endorsed the following remarks by Young CC in R v Anderson [1981] VR 155:
"In sentencing generally, it is necessary to balance personal and a general deterrence on the one hand with rehabilitation on the other. But in the case of an offender suffering from a mental disorder or an abnormality, general deterrence is a factor which should often be given very little weight ... general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality, because such an offender is not an appropriate medium for making an example to others."
The degree of mental disorder or abnormality to which Young CJ was referring in that passage was clearly of a much higher order than the emotional disability from which, unfortunately, the present applicant was suffering at the time he committed this grave offence against his wife. However, as Judge Hosking carefully pointed out, it did attract an element of diminution in criminal responsibility which allowed for the imposition of a lesser punishment than would otherwise be called for.
The phrase upon which Mr Stewart has focused in his Honour's remarks does not, in my view, indicate that his Honour misunderstood the principle of law which he was applying, or misunderstood the factual situation to which he was applying that principle. Indeed, his Honour did clearly take into account the applicant's depressive condition.
The fact that the applicant attacked his defenceless wife with a claw hammer, repeatedly hitting her in the head and body area, as well as stabbing her with a knife a number of times, is indicative of an extremely serious attack.
As a result of the attack, the victim suffered a fractured mandible and multiple lacerations. She has been left with ongoing headaches, lower back pain and scarring to the face, arm and limbs. She has also been left with an ongoing emotional problem.
When one takes into account these serious matters and the subjective matters, including the major depressive condition which the applicant was suffering from at the relevant time, I am quite unable to conclude that the applicant has demonstrated any error on the part of his Honour.
I would propose that this Court grant leave to appeal but that the appeal be dismissed.
BADGERY-PARKER AJ: I agree.
CARRUTHERS AJ:. The order of the Court will be as I have proposed.
LAST UPDATED: 17/05/2001
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