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Court of Criminal Appeal 19 August 2019

Karacic v R

[2019] NSWCCA 195

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCING APPEAL AGAINST SENTENCE UNREPRESENTED APPLICANT ASSERTED MANIFEST EXCESS

Citation: Karacic v R [2019] NSWCCA 195
Court: NSW Court of Criminal Appeal
Date: 19 August 2019
Judge(s): Basten JA; Wright J; Wilson J

Background

The applicant was convicted by a jury of two counts of robbery whilst armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act 1900 (NSW), following a trial in September 2017. Both offences arose from a single incident at a South Hurstville pharmacy in February 2016, during which the applicant used a loaded firearm to steal cash and drugs from staff.

In November 2017, the District Court sentenced the applicant to an aggregate term of six years and three months imprisonment, with a non-parole period of four years and two months. The applicant had a lengthy criminal history including prior convictions for armed robbery in 2003 and 2009.

The applicant, unrepresented, sought leave to appeal against the sentence out of time. He advanced five grounds of appeal, covering the commencement date of his sentence, parity with comparable offences, the sentencing judge's assessment of his rehabilitation prospects, an alleged factual error in his criminal history, and manifest excess.

  • Whether the sentencing judge erred in fixing the commencement date of the sentence, with the applicant contending he was effectively serving a longer term than intended.
  • Whether the sentencing judge erred in comparing the sentence to those for offences of a similar nature.
  • Whether the sentencing judge erred in finding that the applicant's prospects of rehabilitation were poor.
  • Whether the sentencing judge made a factual error in recording the length of the applicant's 2003 armed robbery sentence.
  • Whether the aggregate sentence of six years and three months was manifestly excessive.

Decision

Wilson J (with whom Basten JA and Wright J agreed) examined each ground in turn and found that none disclosed any identifiable error in the sentencing judge's reasons.

On the commencement date, the Court found no error. The sentence commenced from the date the applicant was taken into custody for the present offences, and any period served on separate sentences for other matters (including possessing the firearm) could not be counted toward the present sentence.

On rehabilitation, the Court found the sentencing judge's assessment was well-founded. The applicant had a pattern of serious reoffending, particularly armed robbery, over many years. His subjective case was limited, resting largely on an account he gave to a psychologist rather than evidence he gave himself, and the Court noted that self-reported histories provided to experts carry reduced weight in sentencing proceedings.

On manifest excess, the Court considered the offences serious: a functional firearm was used to rob pharmacy staff in a manner likely to cause lasting harm to the victims. Against that, the applicant received several favourable findings, including an acceptance of remorse despite maintaining his innocence through trial. The Court noted the sentence fell towards the lower end of the available range and described it as a modest one in the circumstances. The absence of any discount for a guilty plea was also relevant, as the matter had proceeded to trial. No error was established on any ground.

Orders Made

  • Time to bring an application for leave to appeal extended until 5 December 2018.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge commits no error by commencing a sentence from the date of custody for the offences being sentenced, even where an applicant has served time on separate concurrent matters.
  • A subjective case built primarily on hearsay accounts provided to a psychological expert, rather than on evidence given by the offender, carries limited weight in sentencing proceedings, consistent with the approach in R v Qutami (2001) 127 A Crim R 369.
  • Where an offender has a persistent pattern of serious reoffending, including repeated armed robbery convictions across two decades, a sentencing judge is entitled to assess prospects of rehabilitation as poor.
  • No reduction in sentence is available to reflect the utilitarian value of a plea of guilty where an offender maintains innocence through trial; this was a relevant consideration in rejecting the manifest excess ground.
  • The finding of special circumstances in the applicant's favour, which reduced the non-parole period below the statutory default ratio, was identified as a further reason the overall sentence could not be characterised as excessive.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(2) (robbery whilst armed with a dangerous weapon)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33 (Form 1 matters), s 53A (aggregate sentencing)

Cases:
- Kaderavek v R [2018] NSWCCA 92
- R v Henry (1996) NSWLR 346
- R v Qutami (2001) 127 A Crim R 369