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Court of Criminal Appeal 18 January 2007

Azouri v R

[2007] NSWCCA 3

Fraud & dishonestyTheft & property
CRIMINAL LAW BREAK, ENTER AND STEAL FROM BANK WHETHER ADEQUATE

Citation: Azouri v R [2007] NSWCCA 3
Court: NSW Court of Criminal Appeal
Date: 18 January 2007
Judges: Howie J, Adams J, Price J

Background

The applicant pleaded guilty in the District Court to breaking, entering and stealing from a Marrickville branch of the National Bank, and to unlawfully keeping ammunition. He and a co-offender, who had insider access through his employment with a security firm, disguised themselves as security guards and removed $560,321.40 from the bank's safe. The applicant received $180,000 of that sum.

After coming under police suspicion, the applicant voluntarily confessed, identified his co-offender, assisted police by wearing a listening device during a conversation with that co-offender, and agreed to give evidence at the co-offender's trial. He had no prior criminal record and had a young family.

The sentencing judge in the District Court took a starting point of six years' imprisonment and reduced it by approximately 60 per cent, resulting in a non-parole period of 15 months with a one-year balance of term. The applicant sought leave to appeal, arguing the sentence was still too harsh and should have been served by way of periodic detention.

  • Whether the sentencing judge gave adequate weight to the applicant's assistance to authorities, including his voluntary confession, identification of the co-offender, cooperation with police, and undertaking to give evidence at trial
  • Whether the sentence was manifestly excessive, particularly when the applicant's subjective circumstances and assistance were taken into account
  • Whether the sentence ought to have been ordered to be served by way of periodic detention

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding the sentence was actually more lenient than warranted rather than manifestly excessive. Howie J, with whom Adams J and Price J agreed, concluded that both grounds of appeal failed.

On the question of assistance, Howie J found the discount of almost 60 per cent was excessive rather than insufficient. Citing the Court's earlier decision in R v Sukkar, his Honour confirmed that a combined discount of more than 40 per cent would be exceptional where there was no evidence the offender would be treated more harshly in custody. While the applicant's voluntary confession justified some additional generosity, a discount approaching two-thirds was unwarranted on the facts.

The Court rejected the contention that the applicant would face a harsher prison environment because he had informed on his co-offender. Consistent with established authority, the Court declined to assume that an informer would automatically be subjected to harsher prison conditions. There was also no evidence that the co-offender posed any particular ongoing danger to the applicant or his family beyond a general and unsubstantiated threat.

The Court observed that the sentencing judge had arguably made several errors in the applicant's favour, including finding special circumstances without adequate evidentiary foundation. Any reduction below the sentence imposed would, in Howie J's view, have been inadequate to the point of error. Accordingly, although leave was granted, the appeal was dismissed.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • A combined discount for guilty plea and assistance to authorities of almost 60 per cent was found to be excessive rather than insufficient, with the Court of Criminal Appeal confirming that a combined discount above 40 per cent will be exceptional absent evidence of harsher treatment in custody.
  • Under the principle confirmed in R v Sukkar, courts should not readily exceed a 40 per cent combined discount for plea and assistance unless there is concrete evidence supporting greater leniency, such as demonstrably harsher custodial conditions.
  • A voluntary confession, while capable of justifying some additional generosity in the discount, does not alone warrant a reduction approaching two-thirds of an otherwise appropriate sentence.
  • No finding of harsher custody conditions should be made for an informer without supporting evidence. In line with R v Mostyn, the Court of Criminal Appeal reiterated that it is not to be assumed an informer will face a harsher prison regime.
  • In dismissing the appeal, the Court reinforced that a sentence cannot be reduced further on appeal merely because the original sentence contained errors, where those errors already operated in the applicant's favour and any lesser term would itself be inadequate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(1) (break, enter and steal)
- Firearms Act 1996 (NSW), s 40(1) (unsafe keeping of ammunition)

Cases:
- R v Mostyn (2004) 145 A Crim R 304
- R v Sukkar [2006] NSWCCA 92