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Court of Criminal Appeal 25 February 2009

R v Alkanaan

[2009] NSWCCA 44

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW AND PROCEDURE SENTENCE INADEQUACY TOTALITY

Citation: R v Alkanaan [2009] NSWCCA 44
Court: New South Wales Court of Criminal Appeal
Date: 25 February 2009
Judge(s): Grove J, Buddin J, Price J

Background

The respondent pleaded guilty in the Parramatta District Court to three offences: aggravated carjacking, attempted aggravated carjacking, and maliciously discharging a loaded firearm with intent to cause grievous bodily harm. Each offence carried a maximum penalty of 14 years imprisonment. A further attempted aggravated carjacking was taken into account on a Form 1 (a formal document listing additional offences considered at sentencing without a separate conviction being recorded).

The offending spanned a short period in 2006. On 23 April 2006, the respondent and an accomplice, armed with a pistol, carjacked a vehicle from a car wash while threatening staff at gunpoint. Three days later, the respondent attempted to carjack another vehicle at a traffic light on the Hume Highway, and when the driver accelerated away, the respondent fired up to ten shots at the vehicle. One bullet struck the driver in the shoulder region.

The District Court sentenced the respondent to a total effective term of 8 years imprisonment with a non-parole period of 5 years. The Crown appealed, arguing the sentences were manifestly inadequate, particularly in relation to the degree of cumulation applied across the multiple counts.

  • Whether the sentence on count 1 (completed carjacking) adequately reflected the objective seriousness of the offence, including the Form 1 matter.
  • Whether allowing shorter unrelated sentences (2 months and 3 months) to run entirely concurrently with the count 1 sentence constituted a miscarriage of sentencing discretion.
  • Whether the commencement dates on counts 2 and 4 produced insufficient cumulation, resulting in sentences that failed to reflect the gravity of those offences.
  • Whether the overall degree of cumulation was adequate to reflect the respondent's total criminality across the offending.

Decision

The Court of Criminal Appeal allowed the Crown appeal, finding that the degree of cumulation applied by the District Court was insufficient to reflect the seriousness of the offending. In particular, the commencement dates for counts 2 and 4 had the effect of adding only 6 months each to the overall non-parole period, an outcome the Court considered inadequate given the gravity of those offences.

The Court adjusted the commencement date for count 2, pushing it back so that the sentence began on 1 July 2010 rather than 1 February 2010. This extended the effective non-parole period by 12 months. The sentence on count 4, and the non-parole period for it, were then repositioned accordingly. The Court maintained the individual sentence lengths and balance terms, but restructured the sequencing to achieve a total non-parole period of 6 years.

The balance term for count 4 was preserved at 3 years, a period the Court regarded as appropriate to allow for supervision and the prospect of rehabilitation. The Court noted that a balance term exceeding one-third of the non-parole period was appropriate in the circumstances. A post-publication amendment corrected a date calculation error in count 2 and the consequential dates for count 4 and the parole eligibility date.

Orders Made

  • Crown appeal against sentence allowed.
  • Sentences imposed in the District Court quashed.
  • Respondent resentenced as follows:
  • Count 1 (taking into account the Form 1 matter): non-parole period of 4 years, commencing 1 May 2007, expiring 30 April 2011; balance term of 2 years commencing 1 May 2011.
  • Count 2: non-parole period of 1 year and 9 months, commencing 1 July 2010, expiring 31 March 2012; balance term of 1 year and 6 months commencing 1 April 2012.
  • Count 4: non-parole period of 12 months, commencing 1 April 2012, expiring 31 March 2013; balance term of 3 years commencing 1 April 2013.
  • Earliest date of eligibility for parole: 31 March 2013.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the principle of totality requires cumulation to be sufficient to reflect an offender's overall criminality, not merely to produce a total that appears proportionate in isolation.
  • Where multiple serious offences occur across separate incidents, insufficient cumulation can render an otherwise properly structured individual sentence manifestly inadequate in its combined effect.
  • Allowing unrelated short sentences to run fully concurrently with a head sentence, without adequate justification, may constitute a miscarriage of sentencing discretion.
  • Restructuring commencement dates, rather than increasing individual sentence lengths, is a recognised mechanism for correcting inadequate cumulation on appeal.
  • A balance term exceeding one-third of the non-parole period can be appropriate where a longer period of potential post-release supervision is warranted to support rehabilitation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33A(1), 154C(2)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1) of 2002 (2002) 50 NSWLR 146