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7
Court of Criminal Appeal 24 June 2011

R v Sukkar

[2011] NSWCCA 140

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCE SENTENCING PROCEDURE FACTUAL BASIS FOR SENTENCE JOINT CRIMINAL ENTERPRISE DIFFERENT ROLES BY CO

Citation: R v Sukkar [2011] NSWCCA 140
Court: NSW Court of Criminal Appeal
Date: 24 June 2011
Judges: Simpson J, Davies J (principal judgment), Grove AJ

Background

The respondent was convicted by a jury of robbery whilst armed with an offensive weapon under s 97(1) of the Crimes Act 1900, following a joint criminal enterprise with a co-offender, Dean Kriticos. The respondent drove the vehicle in which Kriticos travelled to a sex shop in Oxford Street, Surry Hills, waited outside while Kriticos entered the premises armed with a knife, robbed a staff member, and then drove Kriticos from the scene. The maximum penalty for the offence is 20 years' imprisonment.

The sentencing judge imposed a term of 2 years with a non-parole period of 10 months, commencing 6 August 2010. The co-offender Kriticos, who had pleaded guilty at an early stage and cooperated as a Crown witness, received a sentence of 3 years with a non-parole period of 1 year and 10 months, reduced by 50% to reflect his plea and assistance.

The Crown appealed on the ground that the sentence imposed on the respondent was manifestly inadequate, particularly given the disparity with the co-offender's sentence once the significant discounts afforded to Kriticos were taken into account.

  • Whether the sentencing judge erred in the factual basis on which sentence was imposed, specifically whether her Honour found facts inconsistent with the jury's verdict
  • Whether the sentence was manifestly inadequate, including by reference to the co-offender's sentence
  • Whether the Court should exercise its residual discretion to decline to intervene, given that the respondent had already been released on parole before the appeal was resolved
  • What form of re-sentence was appropriate in those circumstances

Decision

Davies J (with Simpson J and Grove AJ agreeing) held that the sentencing judge erred by proceeding on a factual basis that was inconsistent with the jury's verdict. The jury had convicted the respondent of a joint enterprise robbery involving a weapon, yet her Honour appeared to sentence on the basis that the respondent had limited prior knowledge of the robbery and did not know Kriticos was armed. Those findings were irreconcilable with the jury's verdict, which necessarily incorporated a finding that the respondent was a knowing participant in the enterprise.

On manifest inadequacy, the Court found the sentence was clearly outside the range appropriate for this offence. The respondent's role as the getaway driver in a planned armed robbery, committed in the early hours of the morning against a lone worker, warranted a substantially heavier sentence. A comparison with the co-offender's sentence confirmed the inadequacy: once the very substantial discounts granted to Kriticos for his early plea and cooperation were stripped away, the sentence imposed on the respondent was far too low given his role and the absence of those mitigating factors.

The Court acknowledged the residual discretion to decline to intervene in a Crown appeal, particularly where a respondent has already been released to parole through no fault of their own. Nevertheless, the sentence was so inadequate that permitting it to stand was not appropriate. The Court adopted the approach taken in previous cases, increasing the head sentence while preserving the non-parole period already served, so that the respondent was not returned to custody.

Orders Made

  • Appeal allowed
  • The sentence imposed by Judge Wells SC was quashed
  • In lieu, the respondent was re-sentenced to a non-parole period of 10 months commencing 6 August 2010 and expiring 5 June 2011, with a balance of term of 2 years and 2 months expiring 5 August 2013 (total head sentence of 3 years)
  • No order under s 50(1) of the Crimes (Sentencing Procedure) Act 1999 was required as the respondent had already been released to parole

Key Takeaways

  • A sentencing judge cannot make factual findings that are irreconcilable with the jury's verdict; where a jury convicts on a joint enterprise involving a weapon, the sentencing court is bound by that finding and cannot proceed on the basis that the offender lacked knowledge of the enterprise or the weapon.
  • When comparing sentences between co-offenders, significant discounts for early guilty pleas and cooperation with authorities must be properly accounted for; the respondent's sentence, before those adjustments, should have reflected his role as a willing participant who had no such mitigating features.
  • The Court of Criminal Appeal confirmed that the expiry of a non-parole period before a Crown appeal is resolved is a relevant factor in the residual discretion not to intervene, but it does not automatically prevent intervention where the original sentence is sufficiently inadequate.
  • Where the non-parole period has already been served, re-sentencing can take the form of increasing the head sentence only, leaving the respondent on parole rather than returning them to custody.
  • Under R v Henry [1999] NSWCCA 111, armed robbery of a commercial premises in a planned enterprise remains a serious offence attracting significant custodial sentences, and a 2-year head sentence fell well short of the established range.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 50(1)

Cases
- GAS v The Queen (2004) 217 CLR 198
- Hili v The Queen; Jones v The Queen [2010] HCA 45
- Johnson v R; Moody v R [2010] NSWCCA 124
- R v Cheung [2010] NSWCCA 244
- R v Everett (1994) 181 CLR 295
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Hernando (2002) 136 A Crim R 451
- R v Hoschke [2001] NSWCCA 317
- R v Jurisic (1998) 45 NSWLR 209
- R v JW [2010] NSWCCA 49
- R v Price [2004] NSWCCA 186
- R v Ronald John Pilley (1991) 56 A Crim R 202
- R v Swan [2006] NSWCCA 47
- R v Tsoukatos & Kyroglou [1999] NSWCCA 106
- Regina v Darwiche & Ors [2006] NSWSC 1167