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District Court 9 August 2013

R v Gogani

[2013] NSWDC 280

Theft & property
CRIMINAL SENTENCE AFTER TRIAL LACK OF CONTRITION SPECIAL CIRCUMSTANCES.

Citation: R v Gogani [2013] NSWDC 280
Court: District Court of New South Wales
Date: 9 August 2013
Judge(s): S Norrish QC DCJ

Background

The offender, Yashar Gogani, was convicted by a jury in May 2013 on two charges: conspiracy to break and enter commercial premises and commit larceny, and theft of a motor vehicle. The charges arose from a planned large-scale burglary of the Perfume Warehouse, a perfume wholesaler located at Rosehill in western Sydney, which held several million dollars in stock at the relevant time.

From late January 2011, Gogani and his co-accused Neil Pettersen planned and prepared for the burglary over approximately two months. Gogani played an active role, recruiting participants, purchasing implements at a hardware store (including bolt cutters, an axe, and gardening gloves), attending surveillance of the premises, and communicating extensively by telephone. The pair were under police electronic and physical surveillance throughout the planning period, unaware that their coded conversations were being intercepted.

The plan came to a head on the evening of 20 March 2011, when Gogani and Pettersen travelled to North Parramatta and Gogani facilitated the theft of an Isuzu truck, which was to be used as part of the break-in. The substantive offence was never completed. Pettersen had already been sentenced by the same judge and had appealed to the Court of Criminal Appeal, making parity of sentencing a central consideration for Gogani.

  • What is the appropriate sentence for a common law conspiracy offence where the maximum penalty is at large?
  • How should parity principles apply as between Gogani and his co-accused Pettersen, given their respective roles and criminal histories?
  • Should the sentence for the motor vehicle theft (Count 2) be served concurrently or cumulatively with the conspiracy sentence (Count 1)?
  • Whether a finding of lack of contrition, and the absence of a guilty plea after trial, is relevant to the sentencing exercise and distinguishes Gogani from Pettersen.
  • What constitutes special circumstances justifying an adjustment to the standard non-parole period ratio?

Decision

Concurrency of counts: The court determined that the motor vehicle theft (Count 2) was committed entirely in furtherance of the conspiracy (Count 1), and accordingly the sentence for Count 2 should run wholly concurrently with the conspiracy sentence. The court found that the totality of the criminality was fully captured by the sentence on the conspiracy count, applying principles drawn from Pearce v The Queen.

Parity with Pettersen: The court undertook a detailed parity analysis, guided by Postiglione v R and Jimmey v R, applying the Aristotelian formulation that alike cases be treated alike and unlike cases unlike. The court found that, on the evidence heard at trial (including the telephone intercepts), Gogani was equally a leader and principal in the conspiracy as Pettersen. The court accepted that Pettersen had the more serious prior criminal record, but characterised the distinction as minor. Gogani's lack of contrition, and the absence of any guilty plea, were identified as significant distinguishing factors weighing against a more substantial reduction from the starting point.

Starting point and adjustment: The court set a starting point of eight years imprisonment for the conspiracy, consistent with the approach taken in Pettersen's sentence. A downward adjustment of six months was applied to reflect two factors: three months for the period Gogani had already spent in custody (addressed on principles drawn from R v Callaghan), and three months to account for the marginal difference in the offenders' criminal histories. No discount was available for contrition or a guilty plea, as Gogani was convicted after a contested trial and showed no remorse.

Special circumstances: The court found special circumstances existed, resulting in a non-parole period of four years nine months within a total head sentence of seven years six months on Count 1. The balance of sentence was two years nine months.

Orders Made

  • Count 2 (motor vehicle theft): Convicted and sentenced to 18 months imprisonment, commencing 7 August 2013 and expiring 6 February 2015, to be served concurrently with Count 1.
  • Count 1 (conspiracy to break and enter): Convicted and sentenced to a total term of 7 years 6 months imprisonment, comprising:
  • Non-parole period of 4 years 9 months, commencing 7 August 2013 and expiring 6 May 2018.
  • Balance of sentence of 2 years 9 months, expiring 6 February 2021.

Key Takeaways

  • Parity principles require a sentencing court to identify meaningful differences between co-offenders before departing from a consistent sentencing outcome. The District Court found Gogani and Pettersen equally culpable as principals in the conspiracy, and only minor distinctions in criminal history justified a marginal downward adjustment.

  • Where a motor vehicle is stolen solely as an instrument of a larger planned offence, a fully concurrent sentence for the theft may properly reflect the totality of the criminality, without offending the Pearce principles governing concurrent and cumulative sentences.

  • Lack of contrition following conviction at trial is a relevant sentencing consideration that can negate discounts otherwise available to a co-offender who demonstrated remorse. Here, Gogani's absence of contrition meant he did not receive a reduction that had partly benefited Pettersen.

  • A common law conspiracy offence carries a maximum penalty that is, in effect, at large. The appropriate ceiling is informed by the maximum applicable to the intended substantive offence, and the Court of Criminal Appeal's reasoning in the co-accused's appeal directly informed the sentencing exercise.

  • Quantitative mathematical precision in sentencing is not required or expected. As the court noted by reference to Markarian v The Queen, judges must weigh a large number of factors and arrive at an overall judgment rather than a formulaic calculation.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases
- Pearce v The Queen (1998) 194 CLR 610
- Postiglione v R [1997] HCA 26
- Jimmey v R [2010] NSWCCA 60
- R v Hemsley [2004] NSWCCA 228
- R v De La Rosa [2010] NSWCCA 194
- Henry v R (1999) 46 NSWLR 346
- R v Callaghan (2006) 160 A Crim R 145
- Pettersen v R [2013] NSWCCA 20
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Markarian v The Queen [2005] HCA 25