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Court of Criminal Appeal 12 December 2014

Kukovec v R

[2014] NSWCCA 308

Assault & violenceTheft & property
APPEAL SENTENCING AIDING AND ABETTING AGGRAVATED ROBBERY APPEAL UPHELD APPEAL APPEAL AGAINST SEVERITY OF SENTENCE R V HENRY [1999] NSWCCA 111

Citation: Kukovec v R [2014] NSWCCA 308
Court: Court of Criminal Appeal, NSW
Date: 12 December 2014
Judges: Simpson J (with Rothman J and Wilson J agreeing)

Background

The applicant pleaded guilty in the District Court to aiding and abetting aggravated robbery, arising from an incident near Gymea railway station on 16 January 2013. He had been a pillion passenger on a motorcycle ridden by his co-offender, Cook. While the applicant remained with the motorcycle, Cook approached a victim in her car, violently assaulted her, and stole her handbag. Cook then handed the handbag to the applicant, who retained it as the two rode away together.

The applicant was sentenced as a principal in the second degree: his liability arose from receiving and retaining the stolen handbag in the moments after the assault, rather than from any advance planning or active participation in the violence itself. The sentencing judge imposed 3 years and 6 months imprisonment with a non-parole period of 2 years.

Cook, who committed the actual violence, received a head sentence of 3 years and 9 months with a non-parole period of 2 years and 6 months for the same robbery. However, because part of a concurrent sentence for another serious offence applied, Cook's effective custodial time for this robbery was no more than 18 months. The applicant sought leave to appeal on grounds of manifest excess and sentencing parity.

  • Whether the sentencing judge erred by treating "commission of the offence in company" as a separate aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), when that circumstance was already an element constituting the offence of aggravated robbery
  • Whether the sentence was manifestly excessive in light of the applicant's subjective circumstances, including his youth, drug dependency, difficult background, and steps towards rehabilitation
  • Whether a legitimate sense of grievance arose from the disparity between the applicant's sentence and that imposed on Cook, who played a far more serious role in the offending

Decision

Double-counting aggravation. The Court upheld the first ground of appeal. The sentencing judge had treated the fact that the offence was committed in company as an aggravating factor under s 21A(2). However, because the applicant's liability rested on his status as a principal in the second degree, the "in company" element was already inherent in the charge itself. Applying the principle from Osland v The Queen [1998] HCA 75, counting that same circumstance again as an aggravating factor constituted legal error.

Manifest excess. The Court dismissed this ground. The applicant's subjective case, including his troubled background, drug and alcohol issues, youth, and rehabilitative progress, had already received sufficient weight at first instance. The Court found no basis to conclude the sentence was manifestly excessive simply because of those personal circumstances.

Parity. The Court upheld the parity ground. The gap between the sentences for the applicant and Cook did not adequately reflect the vastly different roles each played. Cook carried out the actual violence; the applicant's participation was brief and largely passive. In those circumstances, the Court found the applicant was left with a justifiable sense of grievance, satisfying the legal standard for a successful parity complaint.

Re-sentencing. The Court re-sentenced the applicant, reducing both the head sentence and the non-parole period by six months each. Evidence of the applicant's ongoing rehabilitation in custody was accepted as justifying a continuing positive finding on that issue, though the Court described the evidence as "somewhat slight."

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed, original sentence quashed
  • Applicant re-sentenced to imprisonment comprising a non-parole period of 1 year and 6 months (commencing 13 June 2013, expiring 12 December 2014) and a balance of term of 1 year (expiring 12 December 2015)
  • Applicant directed to be released at the expiration of the non-parole period on 12 December 2014

Key Takeaways

  • Under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court cannot use "commission of the offence in company" as an aggravating factor where that same circumstance already forms an inherent element of the offence for which the offender is being sentenced.
  • A principal in the second degree charged with aiding and abetting aggravated robbery already has the "in company" element embedded in the nature of the liability; treating it again as a sentencing aggravator amounts to impermissible double-counting.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that where a sentencing judge has already given sufficient weight to an offender's subjective circumstances, an appellate court will not interfere on that basis alone.
  • Parity in sentencing requires that the differential between co-offenders' sentences meaningfully reflects the differential in their culpability; a large disparity in roles that produces only a modest difference in sentence can give rise to a justifiable sense of grievance.
  • Ongoing rehabilitative efforts in custody, even where the supporting evidence is modest, remain a relevant consideration on re-sentencing.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 21A(2), 44(2)
- Crimes Act 1900 (NSW), ss 95(1), 345
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- Osland v The Queen [1998] HCA 75; 197 CLR 316
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346