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Court of Criminal Appeal 1 March 2023

Krzykalski Aka Palmer v R

[2023] NSWCCA 32

Assault & violenceTheft & propertyFirearms & weapons
CRIME APPEALS APPEAL AGAINST SENTENCE USING OFFENSIVE WEAPON TO INTIMIDATE PLEAS OF GUILTY TOTALITY WITH QUEENSLAND SENTENCE

Citation: Krzykalski Aka Palmer v R [2023] NSWCCA 32
Court: Court of Criminal Appeal, NSW
Date: 1 March 2023
Judges: Basten AJA, Davies J, McNaughton J

Background

The applicant pleaded guilty in the Local Court to two offences: robbery while armed with a dangerous weapon (maximum penalty 25 years) and using an offensive weapon to intimidate (maximum penalty 12 years). A further offence of possessing a shortened firearm without authority was taken into account on a Form 1. The offences arose from an armed robbery of a suburban newsagency in November 2017, during which the applicant held a gun to a staff member's head and stole cigarettes after an extended and threatening confrontation with two employees and an elderly customer.

The applicant was sentenced in the District Court to an aggregate term of 8 years' imprisonment with a non-parole period of 5 years and 3 months. At the time of the offending, he was on parole in Queensland for a strikingly similar armed robbery offence. His parole was subsequently cancelled, meaning he would serve further time in Queensland custody after completing his NSW sentence.

The applicant sought leave to appeal on the sole ground that the aggregate sentence was manifestly excessive, having regard to both the objective seriousness of the offences and his subjective circumstances. Those circumstances included early life disadvantage, sexual abuse suffered while in State care, a drug habit attributed to that abuse, remorse, and Post Traumatic Stress Disorder (PTSD) caused by a threat made to him by a Corrective Services officer while he was hospitalised.

  • Whether the aggregate sentence of 8 years was manifestly excessive, taking into account both the objective seriousness of the offending and the applicant's subjective case
  • Whether the sentencing judge gave sufficient weight to the applicant's background, including early life disadvantage, sexual abuse in State care, and resulting PTSD
  • Whether the threat by a Corrective Services officer constituted extra-curial punishment warranting a further reduction in sentence
  • Whether the totality principle required the NSW sentence to be moderated to account for the additional Queensland custody the applicant would face following the cancellation of his parole

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, with Davies J delivering the principal judgment and Basten AJA and McNaughton J agreeing.

On the subjective case, the Court found that the sentencing judge had made favourable findings about the applicant's background and had reduced the weight given to general deterrence accordingly. The sentencing judge also found special circumstances by reason of the PTSD. A submission that insufficient weight was given to subjective matters cannot establish manifest excess where some weight was in fact accorded to those matters and the resulting sentences were within the range open to the sentencing judge.

On the extra-curial punishment argument, the Court rejected the applicant's contention that the Corrective Services officer's threat constituted a form of punishment deserving a separate sentencing reduction. This argument had not been raised at the sentence hearing, there was no evidence the officer acted in response to the particular offending, and the sentencing judge had already adjusted the non-parole period to account for the PTSD that resulted from the threat. Any further reduction on the basis of extra-curial punishment would have constituted double counting in the applicant's favour.

On totality, the Court acknowledged that the sentencing judge was aware the applicant would be transferred to Queensland upon release to parole in NSW. However, no submissions on totality had been made below, and the evidence did not disclose how long the applicant would spend in custody in Queensland after the cancellation of his parole. Because the relevant facts remained uncertain on appeal, it was not appropriate to find manifest excess on the basis that the totality principle had been ignored. The Court also noted that interstate transfer legislation may have allowed the applicant to serve his NSW parole concurrently with any Queensland custody period.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A submission that a sentencing judge gave insufficient weight to a compelling subjective case will not establish manifest excess where the judge made favourable findings about that case and reduced the weight of general deterrence accordingly, and where the resulting sentences were within range.
  • Extra-curial punishment as a mitigating factor requires proper evidentiary foundation and must be raised at the sentence hearing. Where a sentencing judge has already adjusted a sentence to account for the consequences of improper conduct (here, the development of PTSD), a further reduction on extra-curial punishment grounds would amount to impermissible double counting.
  • The totality principle, in the context of a cancelled interstate parole, is difficult to apply where the evidence does not disclose the additional period of custody the offender will actually serve. A finding of manifest excess on totality grounds was not open on the uncertain evidence before the Court.
  • Failure to raise totality before the sentencing judge does not automatically bar the argument on appeal, but uncertainty in the evidence at the appellate hearing carries the same practical consequence as uncertainty at first instance.
  • Interstate transfer legislation (the Prisoners (Interstate Transfer) Act 1982 (NSW) and the Parole Orders (Transfer) Act 1983 (NSW)) may allow an offender to serve an NSW parole period concurrently with time spent in custody in another state following parole cancellation, a factor relevant to any totality analysis in similar cases.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B, 97
- Firearms Act 1996 (NSW), s 62
- Corrective Services Act 2006 (Qld), ss 205, 206, 211
- Prisoners (Interstate Transfer) Act 1982 (NSW)
- Parole Orders (Transfer) Act 1983 (NSW)

Cases
- Bugmy v The Queen (1990) 169 CLR 525
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Quinn v R [2018] NSWCCA 297
- R v Allpass (1993) 72 A Crim R 561
- R v Callaghan [2006] NSWCCA 58; (2006) 160 A Crim R 145
- Regina v Daetz; Regina v Wilson [2003] NSWCCA 216; (2003) 139 A Crim R 398
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460