AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
17
Court of Criminal Appeal 14 May 2001

R v Goundar

[2001] NSWCCA 198

Also reported as (2001) 127 A Crim R 331
Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE AID AND ABET ARMED ROBBERY LENIENCY OF SENTENCE ERROR OF LAW

Citation: R v Goundar [2001] NSWCCA 198
Court: NSW Court of Criminal Appeal
Date: 14 May 2001
Judge(s): Wood CJ at CL, Powell JA, Sully J

Background

The respondent, an 18-year-old with no prior convictions, pleaded guilty to aiding and abetting armed robbery. In the early hours of the morning, two co-offenders robbed a service station console operator at machete-point, escaping with around $300 and other items. The respondent drove the co-offenders to and from the scene and, by his own admission to police, knew in advance that a machete would be used.

The respondent was found with a jacket matching those worn by the offenders and stolen goods inside his own vehicle, which was parked nearby. His two co-offenders were sentenced to four years and five years imprisonment respectively. The respondent received a markedly lower sentence of 18 months with a non-parole period of seven months.

The Director of Public Prosecutions appealed under section 5D of the Criminal Appeal Act 1912, contending that the sentence was manifestly inadequate.

  • Whether the sentencing judge gave sufficient weight to the objective seriousness of the offence of aiding and abetting armed robbery
  • Whether the sentence lacked reasonable proportionality between the objective gravity of the offence and the respondent's subjective circumstances (including his youth and lack of prior convictions)

Decision

On the first ground, the Court of Criminal Appeal found that the sentencing judge had materially underestimated the respondent's objective criminality. As an aider and abettor, the respondent's criminality was properly assessed against the full context of the armed robbery. He had provided significant encouragement and assistance, and had specifically contemplated the use of a machete against a vulnerable victim working alone at a service station in the middle of the night. The Court held that these circumstances called for a significant term of full-time custody, carrying a clear element of general deterrence.

On the second ground, the Court accepted that the respondent's youth and first-offender status were relevant considerations. However, the Court found that these subjective features were not sufficiently remarkable to justify the degree of leniency that had been extended. While the courts are rightly reluctant to impose full-time imprisonment on young persons, the Court emphasised that this cannot be allowed to displace the need for a sentence that reflects the true gravity of the offence. The protective function of sentencing requires that objective seriousness remain steadfastly in view.

The Court concluded that the sentence was manifestly inadequate to the point warranting appellate intervention. Applying the principle of double jeopardy (meaning the respondent faced being sentenced twice for the same offence, which courts factor in by imposing a somewhat lighter sentence than they otherwise would), the Court substituted a higher but moderated sentence. The new sentence was also calibrated to maintain appropriate parity with the sentences imposed on the two co-offenders.

Orders Made

  • Appeal allowed; original sentence quashed
  • Sentence of two and a half years imprisonment imposed, commencing 7 August 2000
  • Non-parole period of 12 months, commencing 7 August 2000
  • Respondent to be released on parole at the expiry of the non-parole period (7 August 2001)
  • Respondent taken into custody

Key Takeaways

  • The Court of Criminal Appeal confirmed that an offender who aids and abets armed robbery is to be sentenced by reference to the full objective gravity of that offence, particularly where the offender played an active and knowing role in planning the crime.
  • General deterrence is a significant sentencing factor where an armed robbery targets a vulnerable victim working alone in the early hours of the morning.
  • Youth and a lack of prior convictions, while relevant to sentence, are not automatically sufficient to justify a substantial departure from what the objective gravity of the offence otherwise demands.
  • In Crown sentence appeals, the double jeopardy principle applies: where the Court of Criminal Appeal intervenes, it imposes a sentence somewhat below what it would have considered appropriate at first instance.
  • Parity between co-offenders remained a live consideration in fixing the substituted sentence, requiring consistency with the outcomes for the two co-offenders who had received significantly longer terms.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5D

Cases
- Webster (1999) NSWCCA 313
- Doorey (2000) NSWCCA 456
- Readman (1990) 47 A Crim R
- Thwaites (NSWCCA, 16 October 1993)
- Henry (1999) 46 NSWLR 346
- Govinden [1999] NSWCCA 118
- Pham (1991) 55 A Crim R 128
- Mostronardi (2000) NSWCCA 12
- Dodd (1991) 57 A Crim R 349
- Blackman and Walters [2001] NSWCCA 121
- Allpass (1993) 72 A Crim R 561
- Griffiths (1977) 137 CLR 293
- Dinsdale (2000) HCA 54
- Tran (1999) NSWCCA 109
- Nguyen (NSWCCA, 14 April 1994)