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Court of Criminal Appeal 16 June 2023

Makouk v R

[2023] NSWCCA 142

Theft & propertyFirearms & weapons

Citation: Makouk v R [2023] NSWCCA 142
Court: NSW Court of Criminal Appeal
Date: 16 June 2023
Judges: Beech-Jones CJ at CL, Adamson JA, Price J

Background

The applicant, a young man aged just under 20 at the time of the offending, pleaded guilty to three street robberies committed on successive days in April 2021 in inner Sydney. Two of the robberies involved the applicant pointing what appeared to victims to be functioning pistols at multiple victims; the third involved pressing a box cutter to a victim's stomach. The applicant was found in possession of two unregistered air pistols (which fired gel beads but could not be distinguished from real firearms by the victims) and faced additional firearms charges as a result.

The applicant's subjective case was described by the Court as especially strong. He had no prior convictions, had experienced severe childhood trauma including removal from parental care, sexual abuse, the suicide of his mother when he was 11, and a lengthy history of substance abuse beginning in early adolescence. The sentencing judge in the District Court imposed an aggregate sentence of six years' imprisonment with a non-parole period of three years and six months, finding special circumstances that justified a longer parole period than the statutory default.

On that sentence, the applicant sought leave to appeal to the Court of Criminal Appeal, contending the aggregate term was manifestly excessive given the strength of his subjective case.

  • Whether the aggregate sentence of six years' imprisonment was manifestly excessive in light of the applicant's compelling subjective circumstances
  • Whether comparable decided cases demonstrated that the indicative sentences for each robbery offence fell outside the appropriate range
  • Whether the finding of special circumstances adequately reflected the applicant's rehabilitation prospects and subjective case

Decision

Beech-Jones CJ at CL (with whom Adamson JA and Price J agreed) granted leave to appeal but dismissed the appeal. The Chief Judge at Common Law accepted that the applicant's subjective case was genuinely exceptional, encompassing profound childhood deprivation, trauma, and strong prospects of rehabilitation. However, the Court found that the seriousness of the objective offending was sufficient to justify the sentence imposed.

The Court gave particular weight to the use of what appeared to victims to be functioning pistols on two occasions, describing this as a very significant escalation compared to the knife offence. The concentration of multiple robberies against multiple victims across three consecutive days also weighed heavily in the assessment of objective seriousness.

On the comparable cases raised by the applicant (including decisions in Faleafga, Gardiner, Kocyigit, and Nasrallah), the Court noted the significant limitations on using a small cohort of cases to establish manifest excess, citing Hili v The Queen. At best, those cases provided some support for characterising the indicative sentences as relatively stern, but they did not demonstrate that the aggregate sentence fell outside the permissible range.

The Court further noted that the non-parole period of three years and six months, which reflected the finding of special circumstances under s 44(2A) of the Crimes (Sentencing Procedure) Act 1999, gave appropriate recognition to the applicant's rehabilitation prospects. Taking all matters together, including the totality principle applied to the clustering of offences, the Court was not satisfied that the aggregate sentence was manifestly excessive.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A strong subjective case, including severe childhood trauma, no prior convictions, and good rehabilitation prospects, does not of itself render an aggregate sentence manifestly excessive where the objective seriousness of the offending is high.
  • The Court of Criminal Appeal confirmed that using what appeared to victims to be functioning firearms in the course of robbery represents a very significant aggravating feature, even where those firearms turn out to be non-lethal air pistols.
  • Under the manifest excess ground of appeal, the applicant must demonstrate that the aggregate sentence as a whole falls outside the permissible range; it is insufficient to show only that individual indicative sentences appeared relatively stern.
  • Comparable sentencing decisions provide only limited assistance in establishing manifest excess, particularly where the cohort of cases is small, consistent with the High Court's caution in Hili v The Queen.
  • A finding of special circumstances, resulting in a longer parole period relative to the non-parole period, can itself reflect and give weight to an offender's subjective circumstances, including rehabilitation prospects.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21, 25, 32, 44
- Crimes Act 1900 (NSW), ss 58, 97
- Criminal Procedure Act 1986 (NSW), s 166
- Firearms Act 1996 (NSW), ss 7, 36

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Faleafga v R [2016] NSWCCA 178
- Gardiner v R [2018] NSWCCA 27
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297
- Kocyigit v R [2018] NSWCCA 279
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- Nasrallah v R [2021] NSWCCA 207
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Brown [2012] NSWCCA 199
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Makouk [2022] NSWDC 170
- R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 309