Citation: Regina v H Karaman [1999] NSWCCA 412
Court: NSW Court of Criminal Appeal
Date: 17 December 1999
Judge(s): James J, Sperling J
Background
The applicant, a young man aged nineteen at the time of the offences, pleaded guilty in the District Court to a series of serious offences committed in 1997. The first was a robbery in company in the Sydney CBD on 11 July 1997, where three victims were forced from a gaming venue at knifepoint, threatened, and robbed of wallets, watches, and a ring. The applicant punched one victim and forcibly removed jewellery from him.
The second set of offences occurred on 25 November 1997 at a Leichhardt pawnbroker. The applicant entered the store with two co-offenders and demanded money. During the robbery, he cut the owner's neck with a screwdriver and stabbed the owner's brother in the neck with a knife. As the victims fled and attempted to hold the door to block the offenders' escape, the applicant thrust his knife through the gap in an attempt to stab the owner. The offenders fled in a stolen vehicle. The applicant was on bail at the time for the July offences.
Gibson DCJ sentenced the applicant to a total effective sentence of ten years and six months penal servitude (with a minimum term of seven years and six months) for the pawnbroker offences, along with fixed terms for the earlier robbery and related charges. The applicant sought leave to appeal against that sentence.
Legal Issues
- Whether the sentencing judge erred in the weight given to the applicant's youth at the time of the offences
- Whether sufficient weight was given to the applicant's cooperation with police, including naming co-offenders and undertaking to give evidence against them
- Whether the sentencing judge failed to give adequate weight to the applicant's prospects of rehabilitation
- Whether the sentences imposed were manifestly excessive
- Whether the applicant had legitimate grounds for grievance arising from the lower sentences received by his co-offenders in the pawnbroker robbery
Decision
The Court of Criminal Appeal found no error in Gibson DCJ's approach to sentencing. Sperling J (with James J agreeing) addressed each ground of appeal and concluded none had been established.
On the question of youth and rehabilitation, the court accepted that the applicant's age and the reports from a clinical psychologist were before the sentencing judge and had been taken into account. The court was not persuaded that the weight given to these matters was insufficient or that any reviewable error had occurred.
On the cooperation ground, the court acknowledged that the applicant had provided meaningful assistance to police, including information about co-offenders not captured on security footage. The court noted that this cooperation had practical consequences: the applicant would serve his sentence in protective custody, which is recognised as more onerous than ordinary custody. The court found the sentencing judge had properly accounted for this factor.
On the co-offender comparison, Sperling J undertook a detailed analysis of the sentences received by the two co-offenders who were in the store. The court found that the differences were readily explained by the applicant's greater criminality: he was sentenced for more offences, and the most serious of his offences (robbery with corporal violence and wounding) was graver than any offence for which the co-offenders were sentenced. The court concluded that no justified sense of grievance arose from the disparity.
Orders Made
- Leave to appeal against sentence granted
- Appeal dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge's treatment of mitigating factors such as youth and rehabilitation will not be disturbed on appeal unless a reviewable error is demonstrated.
- Disparity between co-offender sentences does not automatically warrant appellate intervention: the court will examine whether the differences in sentence reflect genuine differences in culpability and the number and severity of offences.
- Cooperation with police, including providing information about co-offenders and undertaking to give evidence, is a recognised mitigating factor; but where that cooperation results in the offender serving time in protection, courts may treat the additional hardship of protective custody as part of the sentencing calculus.
- The fact that an offender is on bail at the time of committing further serious offences is a relevant aggravating circumstance in the sentencing exercise.
- No question of legal principle was raised or resolved in this decision; the catchwords expressly note that the case turned on its particular facts.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 33B(a), 96, 97(1), 154A(1)
Cases:
- Chu (NSW CCA, 16 October 1998, unreported)
- Henry (1999) 46 NSWLR 346
- Lowe (1983-84) 154 CLR 606
- Postiglione (1997) 189 CLR 295
- Veen [No 2] (1987-88) 164 CLR 465