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Court of Criminal Appeal 30 April 2002

Regina v Maloukis

[2002] NSWCCA 155

Assault & violenceTheft & property

Citation: Regina v Maloukis [2002] NSWCCA 155
Court: NSW Court of Criminal Appeal
Date: 30 April 2002
Judge(s): Hodgson JA, Levine J, Simpson J

Background

The respondent pleaded guilty to one count of robbery and four counts of aggravated robbery, with eleven further offences taken into account on a Form 1 (a document that lists additional offences to be considered at sentencing without separate penalty). The offences were committed between December 1999 and May 2000 and involved a consistent pattern of bag-snatching from women in shopping centre car parks, typically carried out by driving a car close to a victim and grabbing the bag. Several victims held on and were dragged to the ground, sustaining injuries including bruising, cuts, and muscle strain. Two victims were aged 74 and 75 respectively.

The respondent had an extensive criminal record dating back to 1981 and committed most of these offences while subject to a periodic detention order for assault. At sentencing in the District Court, Judge Shillington imposed four years with a two-year non-parole period on count 2, and fixed terms of two years on the remaining counts, all running concurrently and backdated to 23 May 2000. The effect was that the respondent became eligible for parole almost immediately after the sentence was handed down.

The Crown appealed, arguing the sentences were manifestly inadequate given the number and nature of the offences, the pattern of targeting vulnerable elderly women, and the need for general deterrence.

  • Whether the sentences imposed by the District Court adequately reflected the objective seriousness of the offences
  • Whether the sentencing judge gave disproportionate weight to the respondent's subjective circumstances (including mental health diagnosis, difficult upbringing, and family responsibilities) relative to the objective gravity of the conduct
  • Whether the respondent's diagnosed generalised anxiety disorder was sufficient to reduce the application of the principle of general deterrence
  • Whether the structure of the sentences, in particular the failure to make any count cumulative on the others, adequately accounted for the totality of the respondent's criminality

Decision

The Court of Criminal Appeal found two errors in the sentencing at first instance. First, the sentencing judge placed excessive weight on the respondent's subjective circumstances at the expense of the objective seriousness of the offences. Second, by ordering all sentences to run concurrently, the sentencing judge failed properly to address the question of cumulation and the totality principle, which requires that the overall sentence reflect the full extent of the criminal conduct.

On the question of the mental health diagnosis, Levine J held that the evidence of the respondent's generalised anxiety disorder did not displace or diminish the application of general deterrence in the circumstances of these offences. The Court cited established authority to the effect that subjective considerations, while relevant, must not be permitted to outweigh the objective factors present in serious cases.

The Court acknowledged the principle of double jeopardy, which operates to moderate the extent to which an appellate court will increase a sentence on a Crown appeal (since the offender faces the additional burden of being sentenced twice). Even accounting for that principle and the genuine subjective factors before the Court, Levine J concluded that the sentence on count 2 required adjustment. The Court noted that even the increased sentence was less than what would have been appropriate absent error at first instance.

Orders Made

  • Crown appeal allowed in respect of the sentence on count 2
  • The sentence on count 2 was made cumulative on the concurrent two-year sentences for counts 1, 3, 4 and 5
  • A four-year sentence on count 2 was imposed, commencing 23 May 2002 and expiring 22 May 2006
  • A non-parole period of 18 months was fixed for count 2, commencing 23 May 2002 and expiring 22 November 2004
  • Sentences on counts 1, 3, 4 and 5 remained unchanged
  • The sentencing judge's recommendation for psychiatric treatment was confirmed

Key Takeaways

  • A sentence or series of sentences must reflect the objective seriousness of the offences; subjective factors are relevant but cannot be permitted to outweigh objective considerations in cases of serious criminality.
  • A diagnosed mental health condition does not automatically reduce the weight given to general deterrence in sentencing for serious offences of violence and dishonesty.
  • Where multiple serious offences are committed in a pattern over an extended period, a sentencing structure that orders all terms to run concurrently may fail to satisfy the totality principle and constitute error.
  • The principle of double jeopardy applies on Crown appeals, meaning an appellate court will typically impose a sentence more moderate than the one it considers would have been correct at first instance.
  • Targeting elderly and vulnerable victims as part of a systematic course of offending is a significant aggravating feature that sentencing must reflect.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 94 (robbery), 95(1) (aggravated robbery)

Cases
- Pearce v The Queen (1998) 194 CLR 610
- Reg v Camilleri (NSWCCA, 8 February 1990, unreported)
- Reg v Dodd (1991) 57 A Crim R 349
- Reg v Edwards (1996) 90 A Crim R 510
- Reg v Fahda [1999] NSWCCA 267
- Reg v Ranse (NSWCCA, 8 August 1994, unreported)
- Reg v Rushby (1977) 1 NSWLR 594
- Reg v Scognamiglio (1991) 56 A Crim R 81