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Court of Criminal Appeal 11 December 2012

Couloumbis v R

[2012] NSWCCA 264

Theft & propertyFirearms & weaponsPublic order & justice offences
CRIMINAL LAW SENTENCE APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Couloumbis v R [2012] NSWCCA 264
Court: Court of Criminal Appeal, NSW
Date: 11 December 2012
Judges: McClellan CJ at CL, Harrison J, Adamson J

Background

The appellant pleaded guilty in the District Court to one count of conspiracy to commit aggravated armed robbery under s 97(2) of the Crimes Act 1900, which carries a maximum penalty of 25 years imprisonment. Three additional offences, including a second conspiracy charge and two contraventions of an apprehended domestic violence order, were taken into account on a Form 1 (a procedure by which a court acknowledges additional offences at sentencing without recording separate convictions).

The conspiracy involved a plan to enter the home of a known acquaintance and rob him at gunpoint of his business takings, which the appellant believed could be as much as $35,000. The appellant recruited two others: a woman he met at a methadone clinic and her drug dealer, who possessed a pistol. Police intercepted communications on 22 October 2010, identified the intended victim, and ultimately arrested the appellant and his co-conspirator on 16 November 2010 before any robbery was carried out.

The sentencing judge imposed a term of 7 years imprisonment with a non-parole period of 5 years, incorporating a 25% discount for the early guilty plea. The appellant sought leave to appeal, arguing the sentence was manifestly excessive, among other grounds.

  • Whether the sentencing judge erred in characterising the offence as a mid-range example of the offence
  • Whether the sentencing judge fell into error by treating financial gain as a specific aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999, when that feature is already inherent in the offence of robbery itself (a form of double counting)
  • Whether the sentence imposed was manifestly excessive in all the circumstances

Decision

The Court of Criminal Appeal found that the sentencing judge had erred in two respects. First, Harrison J (with whom McClellan CJ at CL and Adamson J agreed) concluded that the offence sat below the mid-range of objective seriousness, given the highly unsophisticated nature of the conspiracy. The planning was repeatedly disrupted by personal commitments, forgetfulness, and police surveillance, and none of the participants brought relevant experience or skills to the enterprise. The original target changed partway through to a less ambitious alternative, and the whole scheme was characterised in submissions, with some judicial sympathy, as a "shemozzle."

Second, the Court accepted the double-counting ground. Financial gain is an element inherent in armed robbery itself. Listing it separately as an aggravating factor under s 21A gave it extra weight it was not entitled to receive, constituting a discernible error in the sentencing exercise.

Having identified these errors, the Court was entitled to re-sentence the appellant. Applying the relevant principles from House v R, Markarian v R, and Wong v The Queen, the Court was satisfied that a lesser sentence was warranted in law. The Court acknowledged the seriousness of the offence category and the importance of general deterrence, but weighed those considerations against the objective features of this particular conspiracy.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Sorby DCJ on 11 November 2011 quashed
  • Applicant re-sentenced to 3 years and 9 months imprisonment commencing 4 May 2011 and expiring 3 February 2015, with a balance of term of 1 year and 3 months commencing 4 February 2015 and expiring 3 May 2016

Key Takeaways

  • Conspiracy to commit aggravated armed robbery is a serious offence, but its objective gravity must be assessed on the specific facts: a poorly planned, repeatedly abandoned scheme involving unsophisticated participants may properly be placed below the mid-range.
  • Under s 21A of the Crimes (Sentencing Procedure) Act 1999, a sentencing court must not treat as an aggravating factor any circumstance that is already an essential element of the offence. Identifying "financial gain" as an aggravating factor in a robbery case constitutes impermissible double counting.
  • Identifying two discrete errors in the sentencing judge's approach entitled the Court of Criminal Appeal to re-exercise the sentencing discretion afresh, applying the high threshold for intervention established in House v R.
  • The Court of Criminal Appeal reduced the effective non-parole period from 5 years to 2 years and 9 months, reflecting the offence's true objective seriousness once the errors were corrected.
  • General deterrence remains a significant sentencing consideration for conspiracy to commit armed robbery, even where the scheme was never executed and was ultimately inept in execution.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44(2)

Cases:
- House v R [1936] HCA 40; (1936) 55 CLR 499
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
- Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
- Hili v The Queen [2010] HCA 45; (2010) 85 ALJR 195
- Elyard v R [2006] NSWCCA 43
- Gurney & Willetts v R [2011] NSWCCA 48
- Mulato v R [2006] NSWCCA 282