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Ukropina v R

Ukropina v R

Case [2016] NSWCCA 277 2 December 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ukropina v R [2016] NSWCCA 277
Hearing dates: 22 November 2016
Date of orders: 02 December 2016
Decision date: 02 December 2016
Before: Hoeben CJ at CL at [1]
Bellew J at [47]
Hidden AJ at [48]
Decision:
(1)   Leave to appeal granted.
(2)   The appeal is allowed.
(3)   The sentence imposed by Scotting DCJ on 10 December 2015 is quashed.
(4)    In lieu thereof the applicant is sentenced to imprisonment with a non-parole period of 4 years commencing 14 November 2013 and expiring 13 November 2017 with a balance of term of 2 years expiring 13 November 2019.

Catchwords: CRIMINAL LAW – sentence appeal – plea of guilty to manslaughter due to a substantial impairment by an abnormality of the mind – applicant killed his 29 year old daughter – whether sentencing judge erred in assessing the level of mental impairment – whether adequate reasons given for his finding of the level of substantial impairment – whether mental illness properly taken into account when assessing objective seriousness of offending – medical evidence all one way – very substantial level of mental impairment – error made out – need to resentence.
Legislation Cited: Crimes Act 1900 (NSW) - ss 18, 23A
Criminal Appeal Act 1912 (NSW) - s 5(1)(a)
Cases Cited: Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430
Catley v R [2014] NSWCCA 249
Cowan v R [2015] NSWCCA 118
Hone v State of Western Australia [2007] WASCA 283
Martin v R [2015] NSWCCA 6
Mizzi v The Queen [1960] HCA 77; 105 CLR 659
R v Kelly (1993) 30 NSWLR 64
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Category: Principal judgment
Parties: Djuro Ukropina – Applicant
Regina – Respondent Crown
Representation:
Counsel:
H Dhanji SC/S Howell – Applicant
B Baker – Respondent Crown
Solicitors:
Legal Aid NSW – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2013/344725
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

10 December 2015

Before:

Scotting DCJ

File Number(s):

2013/344725

Judgment

HOEBEN CJ at CL:

Offence and sentence

The applicant pleaded guilty in the Local Court to an offence of voluntary manslaughter contrary to s 18 of the Crimes Act 1900 (NSW). The agreed basis of the applicant’s plea to manslaughter was substantial impairment by an abnormality of mind pursuant to s 23A Crimes Act 1900 (NSW).

The applicant was sentenced by Scotting DCJ to a term of imprisonment with a non-parole period of 4 years and 9 months commencing 14 November 2013 and expiring 13 August 2018 with a balance of term of 2 years expiring 13 August 2020. The maximum penalty for manslaughter is imprisonment for 25 years. There is no standard non-parole period.
The applicant seeks leave to appeal against his sentence pursuant to s 5(1) (a) of the Criminal Appeal Act 1912 (NSW).
The applicant relies on the following grounds of appeal.

Ground…

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 Ukropina v R

Details

AGLC: Ukropina v R [2016] NSWCCA 277
Case: [2016] NSWCCA 277
Decision Date: 02 December 2016

CaseChat Overview and Summary

The applicant, Ukropina, appealed against his sentence following his conviction for the manslaughter of his 29-year-old daughter. The appeal centred on the sentence imposed by the sentencing judge, particularly in relation to the assessment of the level of mental impairment and its impact on the objective seriousness of the offending. The High Court of Australia was tasked with determining whether the sentencing judge erred in assessing the level of mental impairment and whether adequate reasons were provided for the finding of substantial impairment. Additionally, the court had to consider whether the mental illness was properly taken into account when assessing the objective seriousness of the offending.

The court found that the sentencing judge had erred in assessing the level of mental impairment. The medical evidence presented was unanimous in indicating a very substantial level of mental impairment, which the sentencing judge had not adequately considered. The court also determined that the sentencing judge did not provide sufficient reasons for finding that the applicant's mental impairment was substantial. Furthermore, the mental illness was not properly taken into account when assessing the objective seriousness of the offending, leading to an inappropriate sentence. The court held that these errors required the sentence to be set aside and for the matter to be remitted to the sentencing court for re-sentencing.

The court concluded that the sentencing judge's errors warranted the setting aside of the sentence and the remitting of the matter to the sentencing court for re-sentencing. The High Court emphasised the importance of properly assessing the level of mental impairment and its impact on the objective seriousness of the offending. The court also underscored the necessity for clear and adequate reasons to be provided for any findings made regarding the level of mental impairment. The matter was remitted to the sentencing court to ensure that all relevant factors were properly considered in the re-sentencing process.

Orders