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10
Court of Criminal Appeal 17 February 2012

Akkawi v R; Akkawi v R

[2012] NSWCCA 11

Other
CRIMINAL LAW PLEAS OF GUILTY AGGRAVATED DETAIN FOR ADVANTAGE KIDNAPPING ROBBERY IN COMPANY MANIFESTLY EXCESSIVE SENTENCES

Citation: Akkawi v R; Akkawi v R [2012] NSWCCA 11
Court: Court of Criminal Appeal, New South Wales
Date: 17 February 2012
Judge(s): Simpson J (principal judgment), Blanch J, Rothman J (both agreeing)

Background

Two brothers, Mark Akkawi and Paul Akkawi, pleaded guilty in the Local Court to serious offences arising from events over two days in March 2008. The offending grew out of a failed cocaine transaction in which Paul Akkawi had handed over $100,000 in cash to a man who promptly fled the country. Attempting to recover the money, the brothers and an unidentified third person kidnapped two individuals connected to the fraudster, a Greek Orthodox priest and a former associate of the fraudster, and subjected them to serious threats and violence.

Mark Akkawi pleaded guilty to two counts of aggravated detaining for advantage (kidnapping in company), each carrying a maximum of 20 years imprisonment. Paul Akkawi pleaded guilty to those same two counts plus a further count of discharging a firearm with intent to cause grievous bodily harm, which carries a maximum of 25 years. Both brothers also had robbery in company offences taken into account on Form 1.

In September 2010, Colefax DCJ sentenced Mark Akkawi to an aggregate of 8 years and 9 months imprisonment with a non-parole period of approximately 6 years, and Paul Akkawi to an aggregate of approximately 10 years and 9 months with a non-parole period of approximately 8 years. Both applicants sought leave to appeal those sentences as manifestly excessive.

  • Whether the sentences imposed were manifestly excessive, having regard to the objective seriousness of the offences and the personal circumstances of each applicant
  • Whether appropriate weight was given to psychiatric illness (Paul Akkawi) and its effect on moral culpability and specific deterrence
  • Whether the sentencing judge correctly applied the principle of parity between co-offenders sentenced for related offences
  • Whether special circumstances were properly identified and given effect so as to extend the parole period
  • Whether the form of sentencing in years, months, and days (derived from a precise mathematical application of the guilty plea discount) was appropriate

Decision

Simpson J, with Blanch J and Rothman J agreeing, granted leave to appeal and found that the sentences imposed at first instance were infected by error, principally in the treatment of Paul Akkawi's psychiatric illness. The Court found that the sentencing judge had not adequately reflected Paul Akkawi's serious mental health condition in the structure of his sentence, particularly in circumstances where psychiatric illness both diminished moral culpability and reduced the weight to be given to specific deterrence.

On the question of parity, the Court accepted that Paul Akkawi bore greater moral culpability in some respects, given his role in originating the criminal enterprise and his possession and use of the firearm. However, that greater culpability was balanced against his diagnosed mental illness, which warranted a degree of leniency not available to Mark Akkawi. As a result, the Court imposed identical sentences on both brothers for the two kidnapping counts.

The Court found special circumstances in each case, noting that both applicants were being imprisoned for the first time, were relatively young, and had genuine prospects of rehabilitation. The sentences were restructured so that non-parole periods were proportionally shorter than the standard ratio under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, thereby extending the period each applicant would spend under supervision on parole.

Simpson J also took the opportunity to criticise the practice, adopted by the sentencing judge at first instance, of constructing sentences calculated to the precise day in order to mathematically apply the 15% guilty plea discount. Her Honour observed that this approach is conducive to error and that round figures, consistently with the approach in R v Thomson; R v Houlton, are the appropriate sentencing convention.

Orders Made

Revised sentences imposed by the Court of Criminal Appeal:

Mark Akkawi:
- Count 1: 5 years 6 months imprisonment from 29 May 2008, non-parole period 3 years
- Count 2 (with Form 1 offences): 7 years imprisonment from 29 May 2009, non-parole period 4 years
- Aggregate: 9 years 3 months from 29 May 2008, expiring 28 August 2017, non-parole period 5 years expiring 28 May 2013

Paul Akkawi:
- Count 1: 5 years 6 months imprisonment from 29 May 2008, non-parole period 3 years 3 months
- Count 2: 6 years from 29 May 2009, non-parole period 4 years
- Count 3 (with Form 1 offences): 6 years from 29 August 2011, non-parole period 2 years 9 months
- Aggregate: 9 years 3 months from 29 May 2008, expiring 28 August 2017, non-parole period 6 years expiring 28 May 2014

Key Takeaways

  • Psychiatric illness can operate in two distinct ways at sentencing: it may reduce an offender's moral culpability for the offence itself and, separately, diminish the weight to be given to specific deterrence as a sentencing objective. The Court of Criminal Appeal found that the sentencing judge had not adequately reflected these considerations in Paul Akkawi's sentence.

  • Where co-offenders are sentenced for the same offences, the principle of parity requires the court to account for meaningful differences in culpability. However, those differences can be offset by other factors, such as mental illness, such that identical sentences for the shared offences may be appropriate even where one offender bears greater objective responsibility.

  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 should be given practical effect through a materially longer parole period, providing genuine rehabilitation support beyond the non-parole period.

  • Sentences expressed in years, months, and days, calculated to achieve a mathematically precise guilty plea discount, were criticised by the Court of Criminal Appeal as prone to error. Conventional round figures are the preferred approach, and nothing in R v Thomson; R v Houlton mandates arithmetical precision of that kind.

  • Aggravated kidnapping in company, particularly where accompanied by firearm use and sustained threats against vulnerable victims, attracted substantial aggregate sentences even where the offenders were young, had no prior custodial history, and entered early guilty pleas.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): s 33A(1)(a) (discharge firearm with intent to cause GBH), s 86(2)(a) (aggravated detaining for advantage), s 97(1) (robbery in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW): Pt 3 Div 3 (Form 1 procedure), s 9, s 11, s 44 (standard non-parole period ratio)

Cases:
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Hili v The Queen [2010] HCA 45
- R v Hemsley [2004] NSWCCA 228
- R v Israil [2002] NSWCCA 255
- Thomson v R; Moody v R [2010] NSWCCA 124
- Williams v R; Saunders v R [2006] NSWCCA 33