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32
Court of Criminal Appeal 20 December 2011

R v Koloamatangi

[2011] NSWCCA 288

Assault & violenceTheft & propertyFirearms & weaponsPublic order & justice offences
CRIMINAL LAW PROSECUTION APPEAL SENTENCING WHETHER MANIFESTLY INADEQUATE AGGRAVATED BREAK, ENTER AND STEAL PROSECUTION APPEAL

Citation: R v Koloamatangi [2011] NSWCCA 288
Court: Court of Criminal Appeal, New South Wales
Date: 20 December 2011
Judge(s): Basten JA; Adams J; Johnson J (Adams and Johnson JJ agreeing with Basten JA)

Background

Over a single weekend in May 2009, the respondent committed a series of serious offences. On 29 May 2009, he participated in a home invasion at Narwee, leading to charges of aggravated break, enter and steal, and robbery whilst armed with an offensive weapon. Just two days later, in the early hours of 31 May 2009, he committed further offences in the course of a robbery at the Lakes Hotel in Mascot, where he was apprehended by police.

At the Lakes Hotel, the respondent was charged with five offences: robbery whilst armed with a dangerous weapon, two counts of detaining for advantage whilst in company, wounding with intent to prevent apprehension, and shooting at a police officer (Sergeant de Lorenzo) with intent to murder. He pleaded guilty to four of those charges and was convicted by a jury on the most serious charge, shooting with intent to murder.

On 23 May 2011, Sweeney DCJ sentenced the respondent across all seven offences. The cumulative sentences produced a total effective term of 15 years, with a non-parole period of 11 years from 31 May 2009, making the respondent eligible for parole on 30 May 2020. The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912 (NSW), arguing that two of the individual sentences and the overall level of accumulation were manifestly inadequate.

  • Whether the sentencing judge erred in her approach to the standard non-parole periods applicable to the two offences under challenge
  • Whether the sentence imposed for the aggravated break, enter and steal offence at Narwee was manifestly inadequate
  • Whether the sentence imposed for the offence of shooting with intent to murder at the Lakes Hotel was manifestly inadequate
  • Whether the overall accumulation of the sentences was manifestly inadequate

Decision

Standard non-parole periods. The Court confirmed, applying the High Court's decision in Muldrock v The Queen [2011] HCA 39 (handed down after sentencing), that standard non-parole periods cannot have determinative significance in sentencing. They function as a marker that the sentencing judge must bear in mind, but the exercise remains a unitary process weighing all relevant factors. Because Muldrock post-dated the sentencing, the decision removed one of the Director's grounds of error, but the appeal succeeded on other grounds.

Narwee offence: aggravated break, enter and steal. The sentencing judge characterised this offence as falling "just in the mid range of seriousness." The Court found that characterisation failed to give appropriate weight to the multiple circumstances of aggravation present, and materially underestimated the objective seriousness of the offending. The Court also confirmed the correct approach to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW): characteristics inherently part of such offending should not be double-counted as additional aggravating features, but the overall weight given to the aggravation was nonetheless insufficient to support the sentence imposed.

Lakes Hotel offence: shooting with intent to murder. The sentencing judge imposed a non-parole period of 6 years against a standard non-parole period of 10 years (with a maximum of 25 years). The Court held that the judge's assessment of the objective seriousness of this offence was also erroneous. The respondent shot at a police officer in the course of resisting arrest following an armed robbery. A non-parole period of 10 years was warranted, and no special circumstances existed to justify a departure from the standard ratio between the non-parole period and the balance of term.

Totality and accumulation. Increasing the two sentences required a corresponding adjustment to the overall structure. The Court accepted that the result involved a higher degree of accumulation than might ordinarily be seen, but found this necessary to reflect the total criminality of the offending without imposing a crushing sentence. The final structure produced a total period of mandatory detention of 14 years, with a balance of term of 3 years and 4 months.

Orders Made

  • The appeal by the Director of Public Prosecutions was allowed.
  • The sentences imposed by Sweeney DCJ on 23 May 2011 for the Narwee aggravated break, enter and steal offence, and the Lakes Hotel shooting with intent to murder offence, were set aside.
  • In substitution, the respondent was resentenced as follows:
  • Aggravated break, enter and steal (Narwee): non-parole period of 4 years 4 months commencing 31 May 2009 and expiring 30 September 2013, with an additional term of 17 months expiring 28 February 2015.
  • Shooting with intent to murder (Lakes Hotel): non-parole period of 10 years commencing 31 May 2013 and terminating 30 May 2023, with an additional term of 3 years and 4 months expiring 30 September 2026.
  • The respondent's first eligibility for parole was set at 30 May 2023.

Key Takeaways

  • Standard non-parole periods under the Crimes (Sentencing Procedure) Act 1999 (NSW) serve as a legislative marker rather than a determinative benchmark; the sentencing exercise remains a holistic assessment of all relevant factors, as confirmed by the High Court in Muldrock v The Queen [2011] HCA 39.
  • Characterising objective seriousness at a level inconsistent with the weight of the established aggravating circumstances constitutes an error justifying appellate intervention, even though the assessment of objective seriousness is classically a matter for the sentencing judge.
  • Under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a feature inherently present in a particular category of offending cannot be treated as a separately aggravating factor; doing so would amount to a misapplication of the provision.
  • Where individual sentences are increased on appeal, the principle of totality requires the overall accumulation structure to be revisited to ensure the total sentence reflects the full criminality without becoming crushing.
  • No special circumstances were found in relation to the shooting offence, meaning there was no basis for the balance of term to exceed one-third of the non-parole period for that offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 27, 28, 29, 30, 33, 86, 97, 105A, 112
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44, 53A, 54A, 54B, Pt 4 Div 1A; Sch 2 cl 62
- Criminal Appeal Act 1912 (NSW), ss 5D, 6
- Sentencing Act 1989 (NSW), s 5

Cases:
- Muldrock v The Queen [2011] HCA 39
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- House v The King [1936] HCA 40; 55 CLR 499
- The King v Ward [1918] HCA 36; 25 CLR 141
- Carlton v The Queen [2008] NSWCCA 244; 189 A Crim R 332
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Hampton (1998) 44 NSWLR 729
- Mulato v Regina [2006] NSWCCA 282
- Elyard v Regina [2006] NSWCCA 43; 45 MVR 402
- Ayshow v R [2011] NSWCCA 240
- Dwayhi v R [2011] N