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Court of Criminal Appeal 20 February 2014

Stepanyan v R

[2014] NSWCCA 7

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW LEAVE TO APPEAL AGAINST SENTENCE OFFENDER SHOT FORM 1 OFFENCE TAKEN INTO ACCOUNT LEAVE TO APPEAL ALLOWED APPEAL DISMISSED

Citation: Stepanyan v R [2014] NSWCCA 7
Court: NSW Court of Criminal Appeal
Date: 20 February 2014
Judges: Hoeben CJ at CL, Schmidt J (principal judgment), Barr AJ

Background

The applicant pleaded guilty on re-arraignment to robbery whilst armed with a dangerous weapon, following an aborted jury trial. The offence involved a carefully planned armed robbery at a licensed club, in which the applicant organised co-offenders, recruited an inside man (a security guard who agreed to be shot during the robbery in exchange for a compensation payout), and participated in the robbery itself while armed with a pistol. The applicant was sentenced by Lakatos DCJ in the District Court to 10 years' imprisonment with a non-parole period of 7 years, reflecting a 10% discount for his guilty plea.

A co-offender who served as the getaway driver, Balian, had been sentenced by a different District Court judge to a total term of 3 years and 10 months, with a non-parole period of 2 years and 6 months. That sentence reflected a notional starting point of 8 years and 6 months and incorporated a combined 55% discount for a guilty plea and an undertaking to assist authorities. At sentencing, the court also took into account on a Form 1 a separate charge of discharging a firearm in a public place (maximum penalty: 10 years).

The applicant sought leave to appeal the sentence on two grounds: that the sentencing judge wrongly treated the shooting of the security guard as an aggravating feature, and that the significant disparity between his sentence and the co-offender's gave rise to a justifiable sense of grievance.

  • Whether the sentencing judge erred by treating the shooting of the security guard as an aggravating circumstance, given that the guard had consented in advance to being shot.
  • Whether the degree of disparity between the applicant's sentence and the co-offender Balian's sentence was such that the applicant had a justifiable sense of grievance.
  • Whether the sentencing judge appropriately dealt with the Form 1 offence (discharging a firearm in a public place) in arriving at the sentence.

Decision

Ground 1: Aggravation by the shooting

The Court of Criminal Appeal rejected the argument that the security guard's pre-arranged consent to be shot negated the aggravating nature of the shooting. The Court confirmed that using a firearm in a robbery, whether or not an insider had agreed to it, was a seriously aggravating feature. The applicant could not rely on the guard's complicity in the scheme to diminish the objective gravity of the conduct.

Ground 2: Disparity with the co-offender's sentence

The Court found no justifiable sense of grievance arising from the difference in sentence. The comparison between the two offenders was fundamentally flawed because their roles were substantially different. The applicant was the organiser of the enterprise: he recruited the inside man, engaged others to assist, planned the entry method, and entered the club armed. Balian was merely the getaway driver who received a modest payment. The substantially higher discount afforded to Balian (55%, combining a guilty plea and future assistance) also explained much of the gap in outcomes. The Court applied the principle from Lowe v The Queen and Green v The Queen that co-offender disparity only gives rise to a justifiable grievance where sentences are disproportionate in relation to the relative culpability of the offenders concerned.

Form 1 offence

The Court affirmed that taking a Form 1 offence into account properly increases the sentence imposed for the primary offence, with particular weight given to personal deterrence and to the community's entitlement to retribution for serious uncharged conduct. The Court noted that the increase in sentence to reflect the serious firearm offence on the Form 1 had to be, and plainly was, substantial. No error was established in the sentencing judge's approach.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A pre-arranged agreement between the offender and the victim to be shot during a robbery does not diminish the objective seriousness of the shooting as an aggravating feature of the offence.
  • Disparity between co-offenders' sentences does not automatically give rise to a justifiable sense of grievance. A meaningful comparison requires close attention to differences in culpability, role, and the discounts applied to each sentence.
  • The Court of Criminal Appeal confirmed that where an offender is the principal organiser of a criminal enterprise, a substantially higher sentence than that imposed on a minor participant is entirely appropriate, even if the numerical gap appears large.
  • Taking a Form 1 offence into account must result in a meaningful increase to the sentence for the primary offence, with enhanced weight given to personal deterrence and the community interest in retribution for serious offences that carry no separate penalty.
  • Under the principle in R v De Simoni, conduct that forms part of a more serious charge cannot be treated as an aggravating element at sentencing. However, nothing in this decision disturbed the sentencing judge's treatment of the shooting, which fell within the conduct properly charged and sentenced.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(2), 33
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
- Jimmy v Regina [2010] NSWCCA 60; (2010) 77 NSWLR 540
- R v Henry (1999) 46 NSWLR 346
- Dionys v R [2011] NSWCCA 272
- Mulato v R [2008] NSWCCA 282
- R v Wright [2009] NSWCCA 3