Citation: Regina v Dukino; Regina v Moshref [2003] NSWCCA 379
Court: Court of Criminal Appeal, New South Wales
Date: 12 December 2003
Judge(s): Barr J; Newman AJ
Background
Two co-offenders, Dukino and Moshref, were each sentenced in the District Court following guilty pleas to offences arising from two robberies in company at Guildford Railway Station in February 2002. A third co-offender, Youseff, was sentenced at the same time. The robberies involved the assault and robbery of members of the public and a railway station attendant.
Both Dukino and Moshref received identical total sentences of five years imprisonment with a non-parole period of two years and nine months. The indictments presented against them differed in form: Moshref faced three counts on the indictment, while Dukino faced one count on the indictment with the earlier offences addressed by way of a Form 1 (a document that allows additional offences to be taken into account at sentencing without separate conviction).
Both men sought leave to appeal against the severity of their sentences. The central complaints concerned the sentencing judge's approach to parity between co-offenders, the totality principle, and the use of prior criminal history.
Legal Issues
- Whether the sentences imposed on Dukino and Moshref were excessive given the identical sentences imposed on their co-offender Youseff (parity)
- Whether the sentencing judge correctly applied the totality principle when structuring the sentences
- Whether the sentencing judge erred in the use of the applicants' prior criminal records
- Whether Dukino was wrongly denied a discount for an early guilty plea, given he had initially pleaded not guilty before re-arraignment before a different judge
Decision
Newman AJ (with Barr J agreeing) dismissed both appeals. The Court accepted that the different forms of indictment presented against Dukino and Moshref did not, in substance, produce any unfairness or inconsistency in outcome. Both men participated equally in the same criminal enterprise, and the sentencing judge was entitled to treat them as bearing equal responsibility for the robberies.
On the parity argument, the Court endorsed the sentencing judge's reasoning that participants in a joint criminal enterprise should, viewed objectively, bear equal responsibility. The Court cited the principle that attempting to assess with precision the individual role of each participant in a joint robbery is inappropriate, and that the equal sentences were justified.
On Dukino's early plea argument, the sentencing judge found that Dukino had not pleaded guilty at the first available opportunity, because he had initially pleaded not guilty when first arraigned before Nield J. The Court found no error in that reasoning.
Even if any error had been established in the sentencing judge's approach, the Court held that the sentences were in any event "warranted in law" within the meaning of section 5(1) of the Criminal Appeal Act 1912. Applying the principle from R v Astill (No 2), the Court noted that a sentence may properly stand even where the appellate court might weigh individual factors differently from the sentencing judge.
Orders Made
- Leave granted to appeal in both matters
- Both appeals dismissed
Key Takeaways
- Participants in a joint criminal enterprise such as robbery in company will generally bear equal objective responsibility, making it difficult to successfully argue on appeal that individual roles warranted materially different sentences.
- A guilty plea will not attract full credit for an early plea where the offender previously entered a not-guilty plea at the first arraignment, even if a guilty plea is subsequently entered before a different judge.
- In dismissing the appeals, the Court of Criminal Appeal confirmed that a sentence may be upheld as "warranted in law" under section 5(1) of the Criminal Appeal Act 1912 even where the appellate court might have weighed sentencing factors differently, and even where some error by the sentencing judge is identified.
- The structural difference between an indictment and a Form 1 does not necessarily produce unfairness in parity terms; courts look to the substance of what was sentenced rather than the procedural form of the documents.
- Under the parity principle established in Lowe v The Queen, co-offenders in the same criminal enterprise who played materially equivalent roles will ordinarily receive equivalent sentences, absent meaningful differences in their subjective circumstances.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery in company: maximum 20 years imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5(1)
Cases:
- R v Thompson and Houlton (2000) 49 NSWLR 383
- Lowe v The Queen (1984) 154 CLR 606
- The Queen v Henry (1999) 46 NSWLR 346
- R v Hoschke [2001] NSWCCA 317
- R v Astill (No 2) (1992) 64 A Crim R 289
- Oastler (unreported, Court of Criminal Appeal, NSW, 7 October 1992)