Citation: R v Coskun (No 5) [2022] NSWSC 1216
Court: Supreme Court of NSW
Date: 15 September 2022
Judge: R A Hulme J
Background
In the early hours of 2 April 2019, the offender and an accomplice entered a Five Dock apartment via a balcony, intending to rob the occupant of drugs and money. The target was a known drug dealer in possession of over 2kg of cocaine and multiple firearms. The offender and his accomplice were dressed in disguise, wore gloves, and had coordinated their approach using encrypted communications and separate vehicles parked away from the premises.
During the attempted robbery, one of the victims received a fatal gunshot wound to the head. A second victim was shot in the arm. The offender himself was shot in the flank before both intruders fled. He drove himself to hospital, where he was arrested. A third person present in the apartment at the time was also exposed to the violence.
The offender was found guilty by jury on 24 March 2022 of murder (on the constructive murder basis, meaning the death arose in the course of the underlying offence) and attempted robbery whilst armed with a dangerous weapon. The sentencing judgment followed.
Legal Issues
- What aggregate sentence was appropriate for constructive murder and attempted robbery whilst armed with a dangerous weapon?
- Whether the role of the offender in the planning and premeditation of the offending was an aggravating or mitigating factor
- How the standard non-parole period for murder should inform sentencing
- How the sentence for the robbery offence should interact with the murder sentence under the principles of accumulation, concurrency, and totality
- What weight to give subjective factors including a disadvantaged childhood, experience of sexual abuse, and the impact of COVID-19 on conditions in custody
- The applicable statutory requirement under s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW)
Decision
On the planning and premeditation issue, Hulme J found that while there was clearly a degree of premeditation (evidenced by the use of separate vehicles, coordinated communications, and equipment such as high-visibility work shirts), the precise role each intruder played in the planning could not be determined. The Crown could not establish beyond reasonable doubt that this was an aggravating factor, but equally the defence could not establish on the balance of probabilities that it was a mitigating factor. The issue was treated as neutral.
The objective seriousness of the offending was assessed as high. The offence involved a loaded pistol, multiple victims, was committed in the victims' home, and involved two offenders acting in company. The attempted robbery itself was aggravated by the gunshot wounding of one of the victims, which is a statutory aggravating factor under the Crimes Act 1900 (NSW).
On the subjective case, Hulme J acknowledged the offender's disadvantaged childhood and history of sexual abuse as genuine mitigating factors, alongside the adverse conditions of custody during the COVID-19 pandemic. These factors tempered the sentence to a degree, but given the gravity of the offending, their overall effect was limited.
For the robbery sentence, the court was required by statute to impose a sentence that reflected the offence as the foundational offence for the constructive murder finding. Accordingly, the robbery sentence was assessed as substantially less than would otherwise apply on a standalone basis, and a substantial degree of concurrency between the two sentences was applied. The aggregate sentence of 34 years with a non-parole period of 25 years and 6 months reflected the totality principle applied across both offences.
Orders Made
- The offender was convicted of murder and attempted robbery whilst armed with a dangerous weapon.
- An aggregate sentence of 34 years' imprisonment was imposed, with a non-parole period of 25 years and 6 months.
- The sentence commences 2 April 2019 and expires 1 April 2053.
- The non-parole period expires 1 October 2044, at which point the offender becomes eligible for release on parole.
- If sentenced separately: murder would have attracted 32 years with a 24-year non-parole period; the robbery offence would have attracted 5 years.
- The court noted the potential application of the Crimes (High Risk Offenders) Act 2006 (NSW) to the offender pursuant to s 25C.
Key Takeaways
- In constructive murder cases, the sentence for the underlying offence (here, attempted robbery whilst armed with a dangerous weapon) must be assessed as the foundational offence for the murder conviction, which the Supreme Court recognised warrants substantially reduced weight in the aggregate sentencing exercise.
- Where the precise role of an offender in planning and premeditation cannot be established to the relevant standard in either direction, a sentencing court will treat the issue as neither aggravating nor mitigating.
- Statutory aggravating circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW), including commission in a victim's home, the presence of multiple victims, and acting in company, were each engaged on the facts and factored into the objective seriousness assessment.
- Genuine subjective mitigating factors, including a disadvantaged background and a history of sexual abuse, carry weight in sentencing even for very serious offences, though their practical effect will be limited where objective gravity is high.
- The Crimes (High Risk Offenders) Act 2006 (NSW) has potential application to offenders convicted of murder, and sentencing courts are required to note this under s 25C.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 19A(1), 97(2), 98
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2), 30E(3), Pt 4 Div 1A, Table item 1A
Cases
- Darcy v R [2022] NSWCCA 54
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- Smale v R [2009] NSWCCA 220