Citation: R v Makouk [2022] NSWDC 170
Court: District Court of New South Wales
Date: 12 May 2022
Judge(s): Scotting DCJ
Background
The offender appeared for sentencing after pleading guilty in the Local Court to three armed robbery offences, together with related firearms possession charges transferred to the District Court by certificate. The robberies occurred on consecutive nights in April 2021 across Glebe and Ultimo, targeting pedestrians who were confronted at gunpoint or knifepoint. A co-offender participated in at least one of the robberies.
In the first incident, the offender pointed what appeared to be a gun at two men and demanded their watches, cards, and other valuables. The following evening, he grabbed a third victim from behind and held a box cutter to his stomach while demanding his bag and phone. On the third night, he and a young co-offender confronted a couple at gunpoint, taking phones, wallets, backpacks, and cash before walking away laughing.
Police arrested the offender shortly after midnight following the third robbery, finding a victim's bank card in his possession. A subsequent search of the hotel room where the offenders had been staying uncovered two air pistols (legally classified as pistols under the Firearms Act 1996), balaclavas, a knife, and property belonging to the victims. The offender had been on Supreme Court bail when he failed to appear at court, fled from police, and was only subdued after a physical struggle requiring four officers.
Legal Issues
- What sentence was appropriate for three counts of armed robbery, taking into account Form 1 offences (additional charges considered on sentencing but not separately punished), and related firearms possession charges?
- What weight should be given to the offender's subjective circumstances, including age, mental health conditions, addiction, and background, against the objective seriousness of the offences?
- Whether special circumstances existed to justify extending the parole period beyond the statutory ratio (the default proportion of a sentence spent on parole versus in custody).
- Whether an aggregate sentence under section 53A of the Crimes (Sentencing Procedure) Act 1999 was appropriate, and how the totality principle should be applied.
Decision
Scotting DCJ found that all three robbery offences were serious. The court assessed the 6 April 2021 robbery as the most serious, given that two victims were confronted at gunpoint by two offenders acting together. The judge applied the guideline judgment in R v Henry (1999) 46 NSWLR 346 to the armed robbery charges, noting that the form 1 offences were taken into account in the principal sentences rather than sentenced separately.
The court acknowledged the offender's subjective circumstances as compelling. These included his youth (he was a young man at the time of offending), a history of significant childhood trauma, diagnosed mental health conditions, and serious drug addiction. The court applied the principle from Bugmy v The Queen (2013) 249 CLR 571, which recognises that the effects of profound disadvantage on an offender's moral culpability remain relevant at sentencing regardless of the offender's criminal history. Nevertheless, Scotting DCJ noted that these factors could not justify an inadequate sentence for offences of this gravity.
The offender received a guilty plea discount, although the judge noted the plea was entered in the Local Court at an early stage. A 25 per cent discount was applied to reflect the utilitarian value of the plea. The judge found special circumstances justifying a longer-than-usual parole period, given the offender's youth, his first time in custody, and the need for extended support for mental health and addiction treatment upon release.
Applying the totality principle, the court imposed an aggregate sentence rather than cumulative individual terms, to reflect the overall criminality of the three-day offending spree without producing a crushing result disproportionate to the offender's circumstances.
Orders Made
- Offender convicted on all charges.
- Aggregate term of imprisonment of 6 years imposed, with a non-parole period of 3 years and 6 months.
- Sentence backdated to 12 June 2021 to account for two periods of pre-sentence custody.
- Non-parole period expires 11 December 2024; head sentence expires 11 June 2027.
- Offender eligible for release on parole on 12 December 2024.
Key Takeaways
- The District Court confirmed that compelling subjective circumstances, including trauma, mental illness, and addiction, are relevant mitigating factors at sentencing but cannot reduce a sentence to a level inadequate for objectively serious offences.
- Under the totality principle, where multiple serious offences are committed over a short, concentrated period, an aggregate sentence may be more appropriate than cumulative individual terms to avoid a disproportionately crushing outcome.
- Special circumstances justifying a departure from the statutory non-parole ratio can be established where an offender is young, is serving a first custodial sentence, and has identified mental health and addiction needs requiring extended supervision on parole.
- Air pistols that fire gel or water beads are classified as pistols under section 4(1) of the Firearms Act 1996 and are illegal to possess in New South Wales without a licence or permit, even if non-functional.
- The principle in Bugmy v The Queen confirms that the relevance of severe social disadvantage to moral culpability does not diminish with repeat offending, and sentencing courts must engage with this factor even for serious violent offences.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 58, 97(1), 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 53A, 166
- Firearms Act 1996 (NSW), ss 4(1), 7(1), 36(1)
Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- Legge v The Queen [2007] NSWCCA 244
- Muldrock v R (2011) 244 CLR 120
- R v Henry (1999) 46 NSWLR 346