Akkawi v R; Akkawi v R [2012] NSWCCA 11

Akkawi v R; Akkawi v R [2012] NSWCCA 11

Leave to appeal was granted and the appeals allowed because the sentencing structure failed to give proper effect to the finding of special circumstances and, in Mark Akkawi's case, the degree of accumulation produced an excessive aggregate sentence. Mark Akkawi was somewhat less morally culpable because the kidnapping offences were committed to extricate Paul Akkawi from his predicament and Paul was the older and dominant brother, although that was balanced by Paul Akkawi's mental illness. In Paul Akkawi's case, the sentencing judge erred by emphasising specific deterrence despite accepting that his psychiatric illness was causally relevant and treatable, making him unlikely to offend...

Jurisdiction
Australia
Judgment Date
17 February 2012
Procedural Posture
Application for Leave to Appeal Against Sentences / Court of Criminal Appeal Appeal From District Court Sentences Imposed After Pleas of Guilty
Outcome
Leave to appeal granted, appeals allowed, and the applicants re-sentenced.
Legal Topics
['aggravated Detaining for Advantage' 'kidnapping' 'robbery in Company' 'discharging a Firearm With Intent to Cause Grievous Bodily Harm' 'manifestly Excessive Sentence' 'special Circumstances' 'parity of Sentencing' 'aggregate Non Parole Periods' 'mental Health and Psychiatric Illness' 'specific Deterrence']
['criminal Law' 'sentencing'] ['aggravated Detaining for Advantage' 'kidnapping' 'robbery in Company' 'discharging a Firearm With Intent to Cause Grievous Bodily Harm' 'manifestly Excessive Sentence' 'special Circumstances' 'parity of Sentencing' 'aggregate Non Parole Periods' 'mental Health and Psychiatric Illness' 'specific Deterrence']

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Procedural Posture

Application for Leave to Appeal Against Sentences / Court of Criminal Appeal Appeal From District Court Sentences Imposed After Pleas of Guilty

Legal Issues

  1. 1 ["Whether Mark Akkawi had a justifiable sense of grievance on parity grounds because his role was less culpable than Paul Akkawi's role." 'Whether the sentences imposed on Mark Akkawi were manifestly excessive, including by reason of the degree of accumulation.' 'Whether the sentencing judge failed to structure the sentences so as to give proper effect to the finding of special circumstances.' "Whether the sentencing judge erred in setting Paul Akkawi's aggregate non-parole period so that the finding of special circumstances did not provide the intended longer period on parole." "Whether the sentencing judge erred by finding that specific deterrence assumed greater importance as a result of Paul Akkawi's psychiatric illness."]

Ratio Decidendi

Leave to appeal was granted and the appeals allowed because the sentencing structure failed to give proper effect to the finding of special circumstances and, in Mark Akkawi's case, the degree of accumulation produced an excessive aggregate sentence. Mark Akkawi was somewhat less morally culpable because the kidnapping offences were committed to extricate Paul Akkawi from his predicament and Paul was the older and dominant brother, although that was balanced by Paul Akkawi's mental illness. In Paul Akkawi's case, the sentencing judge erred by emphasising specific deterrence despite accepting that his psychiatric illness was causally relevant and treatable, making him unlikely to offend...

Court Disposition

Leave to appeal granted, appeals allowed, and the applicants re-sentenced.

Orders

  • ['Grant leave to appeal, allow the appeal, and re-sentence Mark Akkawi on Count 1 to imprisonment for 5 years and 6 months, commencing on 29 May 2008 and expiring on 28 November 2013, with a non-parole period of 3 years and 3 months, expiring on 28 August 2011.' 'Re-sentence Mark Akkawi on Count 2, taking into...