AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 14 May 2015

R v Kettule

[2015] NSWDC 202

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE PARTICULAR OFFENCES GRAVITY OF OFFENCE OFFENDERS RELEVANT FACTORS

Citation: R v Kettule [2015] NSWDC 202
Court: District Court of New South Wales
Date: 14 May 2015
Judge: Cogswell SC DCJ

Background

On the night of 4 December 2011, a security guard responding to an alarm at commercial premises discovered a cut chain and four men in a car that had been loaded with stolen items. One man threatened the guard with words to the effect of "Reverse the car or I will fucking kill ya." Police stopped the car shortly after and arrested all four occupants, including the offender, Amar Kettule.

Kettule was charged with break, enter and commit a serious indictable offence in company, contrary to s 112(2) of the Crimes Act 1900 (NSW), which carries a maximum of 20 years imprisonment and a standard non-parole period of five years. His three co-offenders had already been sentenced: two by Judge Norrish QC in November 2012, and one in the Local Court in March 2014. The principle of sentencing parity therefore arose squarely for consideration.

Kettule's case in mitigation emphasised that his role was significantly more limited than that of his co-offenders, that he had undertaken genuine rehabilitation over the intervening years, and that he had strong family support and had established his own business. He was 28 at the time of sentencing, had a significant criminal record, and had been on both parole and a good behaviour bond at the time of the offence.

  • Whether the offence fell at the lower end of the range of objective seriousness
  • What discount should apply for the guilty plea, given it was entered late
  • How to assess Kettule's culpability relative to his co-offenders, for the purposes of parity
  • Whether the aggravating factors of prior criminality and offending on conditional liberty were established and what weight they should attract
  • Whether full-time custody was appropriate given the rehabilitation already achieved, or whether a suspended sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was open

Decision

Cogswell SC DCJ found that the offence sat at the lower end of the range of objective seriousness. The court accepted that Kettule had not uttered the threat to the security guard, did not own the car or the trailer, and had no prior connection to the scrap metal business that motivated the theft. The car was not his, and the stolen items were relevant to the other offenders' industry. The court found, on the evidence including Kettule's own testimony, that his culpability was "significantly limited" compared to his co-offenders, though the court noted scepticism about his claim to have been entirely unaware of the criminal purpose before the event.

The court identified two statutory aggravating factors: Kettule's significant criminal record (including prior sentences for drug supply and aggravated break and enter) and the fact that he committed the offence while on parole and subject to a good behaviour bond imposed just one week earlier. These factors weighed against him, but were counterbalanced by evidence of genuine rehabilitation. The pre-sentence report and forensic psychology evidence confirmed meaningful personal change, stable employment, and a supportive family environment.

The court applied a combined 40% discount, reflecting both the utilitarian value of the guilty plea and assistance provided to authorities, with an explanation accepted for the lateness of the plea. Taking parity with the co-offenders into account, and mindful that the principles in Mill v The Queen required that differences in sentence be explicable by reference to differences in culpability or circumstances, the court concluded that full-time custody risked destroying rehabilitation already achieved.

Cogswell SC DCJ sentenced Kettule to a term of imprisonment, suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999, with a two-year good behaviour bond. The court warned expressly that a s 12 bond carries serious consequences for any breach, making re-imprisonment the near-inevitable outcome of further offending.

Orders Made

  • Kettule convicted of break, enter and commit a serious indictable offence in company contrary to s 112(2) of the Crimes Act 1900 (NSW)
  • Sentenced to a term of imprisonment, suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Two-year good behaviour bond imposed as the condition of suspension
  • In respect of the earlier good behaviour bond imposed on 28 November 2011 under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW): the court found Kettule had failed to comply with the bond's condition, but determined under s 98(2) to take no further action

Key Takeaways

  • The District Court confirmed that where multiple co-offenders are sentenced at different times, the parity principle requires differences in sentence to be explicable by reference to differences in individual culpability or personal circumstances, applying the approach in Mill v The Queen (1988) 166 CLR 59.
  • A combined discount of 40% was available where a late guilty plea was accompanied by a satisfactory explanation for the delay, consistent with the principles in R v Todd [1982] 2 NSWLR 517 and R v Borkowski (2009) 195 A Crim R 1.
  • Offending while on parole and subject to a good behaviour bond constituted two separate statutory aggravating factors, both of which the court was required to take into account in fixing the appropriate sentence.
  • Demonstrated rehabilitation during the period between offending and sentencing, supported by forensic psychological evidence, employment, and family stability, may weigh significantly against the imposition of full-time custody, particularly where imprisonment would risk reversing that progress.
  • Under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a suspended sentence is not equivalent to a non-custodial outcome: the court emphasised that breach of the bond's conditions makes re-imprisonment the near-automatic consequence, substantially limiting judicial discretion on any future breach application.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 9, 12, 23, 98

Cases
- Mill v The Queen (1988) 166 CLR 59
- R v Borkowski (2009) 195 A Crim R 1
- R v Todd [1982] 2 NSWLR 517