Citation: Makrynikos v Regina [2006] NSWCCA 170
Court: NSW Court of Criminal Appeal
Date: 30 May 2006
Judge(s): McClellan CJ at CL, Hislop J, Rothman J
Background
The appellant was employed as a technical officer at the Australian Government Analytical Laboratories (AGAL). The Crown alleged that he voluntarily supplied a co-offender with information about the laboratory's layout, security systems, and alarm arrangements, and drew a map to facilitate a break-in, in exchange for $10,000. The co-offender and others used that information to steal a reinforced concrete safe weighing approximately 450 kg containing drugs valued at over $2 million.
The appellant did not dispute his involvement as an accessory before the fact. His sole defence at trial was duress: he claimed he provided the assistance under threats of serious harm to himself and his family. The trial in the District Court therefore turned entirely on whether that defence was established.
The appellant was convicted by a jury on 30 June 2004 and sentenced by Finnane DCJ on 3 September 2004 to 10 years imprisonment with a non-parole period of 5 years and 6 months. He appealed both his conviction and his sentence to the Court of Criminal Appeal.
Legal Issues
- Whether the trial judge's directions on the defence of duress were legally erroneous, specifically by applying a purely objective test rather than the modified objective test required by the authorities.
- Whether the trial judge's use of the phrase "a reasonable person" in the duress directions, rather than "a person of ordinary firmness of mind and will and of the same sex and maturity as the accused," constituted a misdirection.
- Whether the head sentence of 10 years adequately reflected the mitigating factors present, including the appellant's prior good character, absence of prior convictions, remorse, cooperation, and prospects of rehabilitation.
Decision
Conviction appeal
The Court dismissed the appeal against conviction. The central complaint was that the trial judge had replaced the appropriate standard, a person of ordinary firmness of mind and will of the same sex and maturity as the accused, with a purely objective "reasonable person" standard. The Court found that, read as a whole, the directions did not have that effect. The written directions expressly identified the correct standard, explaining that "a reasonable person" was being used as a shorthand reference to a person of ordinary firmness and of the same sex and maturity as the accused. The oral directions similarly referred to "a person of ordinary firmness and strength of will" of the same age, maturity, and sex as the appellant. No error was established in the directions.
Sentence appeal
The Court granted leave to appeal on sentence and upheld the appeal. It accepted that the sentencing judge had acknowledged several favourable factors: prior good character, no prior convictions, remorse, a positive finding that the appellant was unlikely to reoffend, a willingness to facilitate the administration of justice, an offer to assist in the prosecution of others, and good rehabilitation prospects. While the sentencing judge stated that these matters had been taken into account, the Court found their impact on the head sentence was not sufficiently apparent.
The Court accepted that the offence was serious and the appellant's culpability was high. However, it concluded that the criminality was less than that of the principal offender, and that the breadth of the offence provision under section 112(1) of the Crimes Act 1900 meant the 14-year maximum was a less reliable sentencing indicator for this particular case. Weighing these considerations together, the Court reduced the sentence to 7 years with a non-parole period of 4 years and 6 months.
Orders Made
- Appeal against conviction dismissed.
- Leave to appeal against sentence granted.
- Appeal against sentence upheld.
- Sentence quashed and replaced with imprisonment for 7 years commencing 3 September 2004 and expiring 2 September 2011, with a non-parole period of 4 years and 6 months commencing 3 September 2004 and expiring 2 March 2009.
Key Takeaways
- In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that duress directions must apply a modified objective test: the response of a person of ordinary firmness of mind and will, of the same sex and maturity as the accused. A purely objective "reasonable person" standard, unqualified by those characteristics, would be erroneous.
- Where a judge uses "a reasonable person" as shorthand in duress directions, directions read as a whole will not be erroneous if the full and correct standard is clearly articulated elsewhere in both written and oral directions.
- The standard drawn from R v Abusafiah (1991) 24 NSWLR 531, incorporating three questions on genuineness of belief, the response of an ordinary person, and reasonable opportunity to escape the duress, was reaffirmed as the applicable framework in New South Wales.
- A sentencing court that explicitly acknowledges mitigating factors (good character, remorse, rehabilitation prospects, cooperation) may nonetheless err if the reduction those factors produce in the head sentence is not discernible in the outcome.
- Under section 112(1) of the Crimes Act 1900, the maximum penalty of 14 years applies across the full range of offences within that provision. Where the particular offence is not among the most serious within that range, the maximum is a less reliable anchor for calibrating an appropriate sentence.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 112(1), 346
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Cases
- R v Abusafiah (1991) 24 NSWLR 531
- R v Pimentel [1999] 110 A Crim R 30
- R v O'Brien (2003) NSWCCA 121
- R v Ponfield (1999) 48 NSWLR 327
- R v Isaacs (1997) 41 NSWLR 374
- R v Rogers (1996) 86 A Crim R 542
- R v Williams (1997) 97 A Crim R 119
- R v Wickham [2004] NSWCCA 193
- R v Hasan [2005] 2 Crim App 314
- R v Runjanjic (1991) 56 SASR 114
- R v Brewster (1998) 1 Cr App R 220
- Edwards v The Queen (1993) 178 CLR 193
- Attwood v The Queen (1960) 102 CLR 353
- Stingel v The Queen (1990) 171 CLR 312
- Zoneff v The Queen (2000) 200 CLR 234
- Rice v McDonald (2000) 113 A Crim R 75