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District Court 15 April 2010

R v Kyal SUKKAR

[2010] NSWDC 106

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCE ARMED ROBBERY AGGRAVATED BREAK, ENTER AND STEAL FORMS 1 TAKEN INTO ACCOUNT OFFENCES COMMITTED IN COMPANY

Citation: R v Kyal SUKKAR [2010] NSWDC 106
Court: District Court of New South Wales
Date: 15 April 2010
Judge(s): Cogswell SC DCJ

Background

The offender, a 19-year-old man with a negligible prior criminal record, was sentenced for three serious offences arising out of events on Australia Day 2009. Together with two companions, he targeted a pizza delivery driver by ordering pizzas to a suburban address and then robbing the driver at gunpoint when he arrived.

The offender produced what appeared to be a handgun (in fact a toy) and demanded the driver's car keys, pizza, and cash. The victim was then forced into his own car and driven around for approximately three and a half hours while the offenders withdrew money from his ATM accounts. He was ultimately taken to a sports field where the offender's co-offenders punched, stabbed, and slashed him with a broken glass bottle, leaving him with facial bruising, lacerations to his back, and arm abrasions. The offenders then burned the victim's car.

A separate count of aggravated break, enter and steal arose from an unrelated incident at a garage. The court also took into account, under the Form 1 procedure, the theft and deliberate destruction of the victim's car and a further count of unlawful detention connected to the break and enter.

  • What sentence was appropriate for the principal offence of specially aggravated detain for advantage (effectively kidnapping in company where the victim is assaulted), an offence carrying a maximum of 25 years imprisonment?
  • How should the court weigh objective seriousness against significant mitigating personal circumstances, including youth, a supportive family, early guilty plea, and rehabilitation prospects?
  • Was the offender directly responsible for the serious physical assaults and stabbing inflicted by his co-offenders, and how should that affect his culpability?
  • Whether gratuitous cruelty was established, and what the applicable sentencing range was by reference to the guideline judgment in R v Henry.
  • How should the individual sentences for three separate offences be structured to reflect totality and avoid double punishment for the armed robbery and kidnapping, which arose from the same incident and the same victim?

Decision

Cogswell SC DCJ emphasised at the outset that the objective seriousness of the offences had to remain at the forefront of the sentencing exercise and could not be overwhelmed by the offender's otherwise compelling personal case. The kidnapping was a prolonged, planned, and opportunistic attack on a vulnerable victim going about his ordinary employment. The victim was held for three and a half hours, assaulted multiple times, robbed of cash and ATM funds, and left injured at night in an unfamiliar location.

Although the most serious physical assaults and the stabbing were carried out by the co-offenders rather than the offender himself, the court found that his culpability remained high. He was the one who produced the imitation firearm, directed the victim throughout the ordeal, and himself punched the victim on at least two occasions. He also said "don't kill him" during the group's discussion of how to deal with the victim, a remark that illustrated his awareness of and participation in the enterprise.

On the other side of the ledger, the court gave significant weight to the offender's youth (19 at the time of sentencing), his early plea of guilty, his negligible criminal history, and evidence that his offending was connected to a period of drug use and poor association choices during his adolescence. The court accepted evidence that he had ceased drug use since entering custody and that he had the support of a stable family. The court also noted that he was himself the subject of assaults by associates, which formed part of the context for his involvement with the group.

Applying the guideline judgment in R v Henry for armed robbery, and balancing all factors for the specially aggravated kidnapping, the court structured the sentences to reflect totality principles. The kidnapping sentence was staggered to commence six months after the date of first custody, acknowledging the overlap between the armed robbery and kidnapping charges arising from the same victim and occasion.

Orders Made

  • Armed robbery: 4 years imprisonment, commencing 7 April 2009, with a non-parole period of 2 years (expiring 6 April 2011).
  • Aggravated break, enter and steal: 18 months imprisonment, commencing 7 April 2009, with a non-parole period expiring 6 April 2010.
  • Specially aggravated detain for advantage (kidnapping): 6 years imprisonment, commencing 7 October 2009, with a non-parole period of 3 years (expiring 6 October 2012).
  • Two Form 1 offences (theft and destruction of motor vehicle) taken into account on the kidnapping count.
  • Two further Form 1 offences (destruction of property and unlawful detention) taken into account on the break and enter count.
  • Overall sentence: 6 years and 6 months imprisonment; first eligible parole date 6 October 2012; total sentence expiring 6 October 2015.
  • The psychiatric report of Dr Stephen Allnutt dated 1 April 2010 directed to accompany the offender's warrant.

Key Takeaways

  • The District Court confirmed that objective seriousness must anchor the sentencing exercise even where an offender presents strong mitigating personal circumstances, including youth, rehabilitation, and family support.
  • A participant in a joint criminal enterprise who does not personally inflict the most serious violence may nonetheless carry high culpability where they initiated the offence, wielded an imitation weapon, directed the victim throughout, and themselves participated in physical assaults.
  • Early guilty pleas, genuine youth, negligible prior criminal history, cessation of drug use in custody, and a stable home environment all operated as significant mitigating factors but did not reduce sentences to the point of undermining the gravity of offences carrying 20 to 25 year maximum penalties.
  • Where two counts arise from the same occasion and the same victim, the totality principle may warrant staggering the commencement of the more serious sentence to avoid disproportionate cumulation, rather than running all sentences concurrently.
  • Under the Form 1 procedure, additional offences taken into account at sentencing are reflected in the penalty imposed for the head offence but do not themselves carry separate sentences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 86(1)(b), 86(3) (specially aggravated detain for advantage / kidnapping), 97(1) (armed robbery), 112(2) (aggravated break, enter and steal), 154F (motor vehicle theft), 195(1)(a) and (b) (destruction of property)
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 21A (aggravating and mitigating factors), s 32 (Form 1 procedure)

Cases:
- R v Henry (1999) 26 NSWLR 346 (guideline judgment for armed robbery)
- R v McCullough [2009] NSWCCA 94