ADZIOSKI v R [2013] NSWCCA 69

ADZIOSKI v R [2013] NSWCCA 69

The sentencing judge did take the applicant's mental illness and reduced moral culpability into account, but was entitled to balance those matters against the applicant's awareness of his conduct and its wrongfulness, intoxication, the seriousness of the public sexual assault, the Form 1 matter and the need for deterrence and community protection. The judge did not impermissibly treat cognitive impairment itself as an aggravating factor, but considered the victim's vulnerability in the circumstances of the assault. The sentence was not unreasonable, plainly unjust or manifestly excessive.

Jurisdiction
Australia
Judgment Date
05 April 2013
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['attempted Sexual Intercourse Without Consent' 'victim With Cognitive Impairment' 'mental Illness and Moral Culpability' 'general Deterrence and Specific Deterrence' 'aggravating Features' 'manifest Excess' 'form 1 Offence']
['criminal Law' 'sentencing'] ['attempted Sexual Intercourse Without Consent' 'victim With Cognitive Impairment' 'mental Illness and Moral Culpability' 'general Deterrence and Specific Deterrence' 'aggravating Features' 'manifest Excess' 'form 1 Offence']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence

Legal Issues

  1. 1 ["Whether the sentencing judge failed to give adequate weight to the applicant's mental illness as it affected moral culpability, general deterrence and specific deterrence." "Whether the sentencing judge erred by treating the victim's vulnerability arising from cognitive impairment as an aggravating feature." 'Whether the sentence imposed was manifestly excessive.']

Ratio Decidendi

The sentencing judge did take the applicant's mental illness and reduced moral culpability into account, but was entitled to balance those matters against the applicant's awareness of his conduct and its wrongfulness, intoxication, the seriousness of the public sexual assault, the Form 1 matter and the need for deterrence and community protection. The judge did not impermissibly treat cognitive impairment itself as an aggravating factor, but considered the victim's vulnerability in the circumstances of the assault. The sentence was not unreasonable, plainly unjust or manifestly excessive.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Leave to appeal is granted.' 'The appeal is dismissed.']