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118
Court of Criminal Appeal 30 November 2004

R v Youkhana

[2004] NSWCCA 412

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW: ARMED ROBBERY WHETHER SENTENCE AND NON

Citation: Youkhana v R [2004] NSWCCA 412
Court: NSW Court of Criminal Appeal
Date: 30 November 2004
Judge(s): McColl JA, Levine J, Hidden J (reasons delivered by Hidden J)

Background

The applicant pleaded guilty in the District Court to armed robbery under s 97(1) of the Crimes Act, carrying a maximum of 20 years imprisonment. The offence involved the applicant and a co-offender robbing a Sydney club after gaining access under the pretence of seeking security employment. Three staff members were bound with duct tape, a replica pistol was used, and over $81,000 was stolen.

Nash DCJ sentenced the applicant to six years and four months imprisonment with a non-parole period of four years, two months and two weeks. That sentence was directed to commence at the expiration of a pre-existing 15-month sentence the applicant was already serving, meaning the two sentences were fully accumulated. The sentencing judge declined to make any part of the new sentence concurrent with the existing term.

The applicant sought leave to appeal, arguing that the sentencing judge failed to apply the principle of totality when structuring the accumulated sentences, and also that the judge incorrectly identified an aggravating factor of substantial emotional harm to the victims.

  • Whether the head sentence and non-parole period adequately reflected the totality principle, given that the new sentence was fully accumulated upon an existing term
  • Whether the sentencing judge erred in finding the aggravating factor of substantial emotional harm to victims under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act
  • Whether the non-parole period was correctly calculated (the judge had applied two-thirds rather than the standard three-quarters statutory proportion)

Decision

The Court accepted that the sentencing judge erred in applying the totality principle. Totality requires that where a sentence is accumulated upon an existing term, the overall effect of the combined sentences must be considered and, ordinarily, some moderation of the later sentence is warranted. The judge's only recorded consideration of accumulation was a brief statement that there was "no justification" for any concurrency, with no apparent moderation of the head sentence to reflect the combined burden on the applicant.

On the aggravating factor of substantial emotional harm, Hidden J held that the evidence did not support that finding. The victim statements recorded immediate distress and nervousness, but there was no evidence of an emotional response significantly more deleterious than what any ordinary person would experience in an armed robbery. His Honour noted that armed robbery is inherently frightening, which is why the offence carries a high maximum penalty, but that a finding of substantial emotional harm requires evidence specifically directed to that issue, ordinarily by way of a victim impact statement.

The Court also noted the sentencing judge's error in applying two-thirds (rather than three-quarters) as the statutory proportion for the non-parole period, an error that had operated in the applicant's favour. On resentencing, the Court took seven years as the base before a 25 percent reduction for the early guilty plea entered in the Local Court, arriving at five years and three months. Special circumstances were found, justifying a non-parole period of three years and three months. Aggregated with the pre-existing 15-month sentence, the total custodial period from the commencement of the original sentence was six and a half years, with parole eligibility after four and a half years.

Orders Made

  • Leave to appeal granted; the appeal allowed; the District Court sentence quashed
  • The applicant sentenced to imprisonment for five years and three months, with a non-parole period of three years and three months, commencing 28 February 2004
  • Eligible for release on parole on 27 May 2007

Key Takeaways

  • The totality principle requires a sentencing court to consider the overall effect of accumulated sentences; a bare conclusion that no concurrency is warranted, without any moderation of the head sentence, may be insufficient.
  • Where an aggravating factor such as substantial emotional harm is relied upon, the prosecution must lead evidence specifically directed to that finding, ordinarily through a victim impact statement. Evidence of immediate distress during an armed robbery does not, without more, establish the statutory aggravating factor.
  • A guilty plea entered at an early stage, including in the Local Court, carries significant utilitarian value and informed the Court's 25 percent discount in resentencing.
  • Special circumstances can be found and applied on resentencing to justify a non-parole period shorter than the standard three-quarters of the head sentence, particularly where the structure of the accumulated sentences warrants it.
  • In dismissing the lower sentence structure and resentencing, the Court of Criminal Appeal recalculated the combined effect of all terms to ensure the total period of imprisonment and parole eligibility reflected the applicant's overall criminality and circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), s 97(1) (armed robbery), s 81C(b) (improperly interfering with a corpse)
- Crimes (Sentencing Procedure) Act (NSW), s 21A(2) (aggravating factors, including s 21A(2)(g) substantial emotional harm and s 21A(2)(j) offence committed on bail)

Cases:
- Postiglione v The Queen (1996-7) 189 CLR 295
- R v Simpson (2001) 53 NSWLR 704
- R v Henry & Ors (1999) 46 NSWLR 346 (armed robbery guideline judgment)
- R v Close (1993) 65 A Crim R 55
- R v Gordon (1994) 71 A Crim R 459