Kukovec v The Queen
[2014] NSWCCA 308
•12 December 2014
Court of Criminal Appeal
New South Wales
Case Title: Kukovec v R Medium Neutral Citation: [2014] NSWCCA 308 Hearing Date(s): 8 December 2014 Decision Date: 12 December 2014 Before: Simpson J at [1]; Rothman J at [46]; Wilson J at [47] Decision: (1) Leave to appeal against sentence granted;
(2) Appeal allowed, sentence quashed;
(3) In lieu thereof, the applicant be sentenced to imprisonment made up of a non-parole period of 1 year and 6 months commencing on 13 June 2013 and expiring on 12 December 2014, with a balance of term of 1 year, expiring on 12 December 2015;
(4) Direct that the applicant be released at the expiration of the non-parole period on 12 December 2014.
Catchwords: APPEAL - sentencing - aiding and abetting aggravated robbery - whether error in treatment of commission of offence in company as aggravating factor - Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2) - principal in the second degree, Osland v The Queen [1998] HCA 75 - appeal upheld
APPEAL - appeal against severity of sentence - whether sentence manifestly excessive in light of the applicant's subjective case - R v Henry [1999] NSWCCA 111 - sufficient 'special consideration' already granted - appeal dismissed
APPEAL - sentencing - parity, whether legitimate sense of grievance when sentence considered in relation to co-offender's sentence - role in offence - appeal upheld - applicant re-sentencedLegislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A, s 21A(2), s 44(2)
Crimes Act 1900 (NSW), s 95(1), s 345
Criminal Procedure Act 1986 (NSW), s 166Cases Cited: Osland v The Queen [1998] HCA 75; 197 CLR 316
R v Henry [1999] NSWCCA 111; 46 NSWLR 346Category: Principal judgment Parties: Joseph Kukovec (Applicant)
Regina (Respondent)Representation - Counsel: Counsel:
R Burgess (Applicant)
N Williams (Respondent)- Solicitors: Solicitors:
S E O'Connor - Legal Aid NSW (Applicant)
S Kavanagh - Solicitor for Public Prosecutions (Respondent)File Number(s): 2013/15398 Decision Under Appeal - Court / Tribunal: District Court - Before: Blackmore DCJ - Date of Decision: 15 November 2013 - Court File Number(s): 2013/15398
JUDGMENT
SIMPSON J: On 30 July 2013, in the Local Court, the applicant entered a plea of guilty to a charge of aiding and abetting an offence of aggravated robbery. By s 95(1) of the Crimes Act 1900 (NSW), the offence of aggravated robbery attracts a maximum sentence of imprisonment for 20 years. By s 345 of the Crimes Act, an offence of aiding and abetting such an offence attracts the same penalty.
On 15 November 2013, in the District Court, having adhered to his plea of guilty, the applicant was sentenced in respect of that offence to imprisonment for 3 years and 6 months, made up of a non-parole period of 2 years, commencing on 13 June 2013, with a balance of term of 1 year and 6 months. Also before the court, pursuant to s 166 of the Criminal Procedure Act 1986 (NSW), was a further offence of possession of a prohibited drug (being 5.06grams of cannabis), an offence which attracts a maximum penalty of imprisonment for 2 years. In respect of that offence, the applicant was convicted but, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act"), no penalty was imposed.
The applicant now seeks leave to appeal against the asserted severity of the sentence imposed in respect of the principal charge.
The facts
The offence was committed on 16 January 2013 near the Gymea railway station. On that day, the applicant was a pillion passenger on a motorcycle ridden by Cameron Cook. While the applicant remained in the vicinity of the motorcycle, Cook approached a vehicle which the victim, Ms X had just entered. Ms X placed her handbag on the front passenger seat. After aggressively demanding bottled water from her, Cook attacked Ms X. He rocked the vehicle from side to side. He smashed the window as Ms X attempted to wind it up. He punched Ms X on the left side of the face, took her face in both hands, and tore off her glasses. He reached into the vehicle and stole the handbag.
Throughout this incident, the applicant remained with the motorcycle. The evidence does not disclose the distance between the motorcycle and Ms X's vehicle. Cook returned to the motorcycle, and handed the handbag to the applicant. Ms X followed Cook and attempted to retrieve the handbag from the applicant. Cook rode off, with the applicant as passenger, still holding Ms X's handbag.
On these facts, the applicant was prosecuted as a principal in the second degree. The offence committed by Cook, to which the applicant admitted he was a party, was aggravated robbery. The circumstance of aggravation was that, immediately before the robbery (of the handbag and its contents) Cook used corporal violence on Ms X.
The applicant's personal circumstances
Evidence of the applicant's personal circumstances was put before the sentencing judge principally by means of a Pre-Sentence Report prepared by the Community Corrections Office, and a psychological report, prepared by Ms Michelle Player. The applicant also gave evidence, although his evidence did not substantially address his personal history. From the information before the court, the following emerged.
The applicant was born in Australia in October 1992, with one older sister. He was 20 years of age at the time of the offence. He had a criminal history of some significance, of which the most serious entries were of robbery in company (2011), affray (two offences, 2011 and 2013) and negligent driving not occasioning death or grievous bodily harm (2013). At the time of the present offence, the applicant was subject to conditional bail in respect to the later offence of affray.
His early life was marked by a degree of instability. His mother is of New Zealand/Scottish descent, his father Croatian. The relationship between his parents was unstable, and ended when the applicant was 7. His father was a heavy consumer of cannabis.
Following the separation of his parents, the applicant, his mother and sister, lived with his maternal grandparents for a time, until that relationship deteriorated. The applicant's relationship with his grandfather was not good. His grandfather's behaviour towards the applicant laid the foundation for low self-esteem. The applicant's mother has since re-partnered, and this relationship has proved stable and non-abusive.
Early in his school career, the applicant began to show signs of behavioural disturbance, sufficient to result in his suspension, first in Year 8, and then several times thereafter, and culminating in a request that he cease attending in Year 10. He was able to sit for and achieve his Year 10 certificate. Since then, he has had various forms of short term employment, interspersed with periods of unemployment and he has been in receipt of social security payments.
He began using alcohol early in high school and combined this with a prescription drug, Xanax (a benzodiazepine diagnosed as a sedative). He began smoking cannabis on a regular basis from about Year 8 school. His use escalated to a daily basis, but ceased when he progressed to amphetamines and methamphetamines. His use was of the "binge" variety. This gave rise to psychiatric symptoms, hallucinations, delusions, paranoia, anxiety and panic attacks.
He also abused drugs that had been prescribed by his general practitioner in ignorance of his illicit drug use.
The applicant was arrested in relation to the present offence later on the same day. He was then intoxicated. He remained in custody until 13 May, when he was released in order to attend a residential rehabilitation centre. He remained at one such centre for about one month, before transferring to another, where he remained until 4 October. Thereafter, he was at liberty, subject to bail conditions, until sentenced on 15 November 2013. He received a favourable report, for sentencing purposes, from the second of these establishments.
The applicant's evidence in the sentencing proceedings was principally directed to the circumstances of the offence. He said that, on the day of the offence, he was "very intoxicated" on drugs and alcohol, which he had consumed with Cook. He said that he had not slept for three days, and that he was taking "ice" (methamphetamine), Xanax and alcohol during that period. He said that he thought he and Cook were just going on a ride, but that Cook stopped at Gymea Station, and told the applicant to wait on the bike. He said that he did not know what to do, and was intimidated. (It is difficult to reconcile these assertions with the applicant's pleas of guilty to the offence of aiding and abetting aggravated robbery.) He said that he was very remorseful, and that he regretted having been on the motorcycle. In cross-examination he said that he believed that, when Cook left him with the motorcycle, he was "going to get a bottle of water or something". (This is consistent with the statement of facts in which it is agreed that Cook began his encounter with Ms X by demanding a bottle of water.)
The applicant was represented in the sentencing proceedings. During the course of submissions on his behalf, two exchanges worthy of note took place, recorded in the transcript as follows:
"[COUNSEL FOR THE APPLICANT]: But he certainly didn't - there was no indication in advance of any - there was no indication by Mr Kukovec of any intention or willingness to assist Mr Cook. He was passed a bag and in that instant, and that's the instant where his assistance kicks in. The plea in this matter is on that basis. There is no suggestion that his presence at the bike some metres away was in any way could be construed as him lending assistance to the offender ... His role was completely passive. There was no indication whatsoever from him of any willingness to assist.
HIS HONOUR: The plain fact of the law in relation to in company is that he was in company. He was there able to assist. He would have deterred other people from intervening by the fact that there were two of them involved. He's not charged with being in company but he was there in company at the time of that particular offence. He was close enough nearby to assist.
[COUNSEL]: We could concede in company your Honour but we would not concede part of the joint criminal enterprise at that point in time. So we would strongly submit that whilst yes, in company, he would have been visible to the victim.
HIS HONOUR: Obviously I can't find joint criminal enterprise because that is now [sic - not] what he is charged with.
[COUNSEL]: We would say that his assistance - and the only inference that can be drawn is that his assistance was rendered at the point that the bag was thrown and it was very much rendered after he had witnessed the event and we don't seek to minimise that, but it is what it is and in my submission your Honour is correct in that there would have been a period of perhaps somewhere 10 and 30 seconds where he could have departed from the scene or attempted to assist the victim--
HIS HONOUR: ...
...
[COUNSEL]: We would certainly concede that his presence during - and the fact that he saw the very serious offence occur aggravates the role that he did play, even though it is a very minimal role, we would concede that but we would submit that he is not committing an offence at that point in time, that the offence commences but certainly - the assessment of the offence - it is relevant that he did witness what occurred, we would certainly agree with that.
I have already in the course of submissions raised a number of factors that do arise under s 21A [of the Sentencing Procedure Act]. I will run quickly run through without being repetitive - but just in terms of aggravating factors that do apply, as already indicated, actual and threatened use of violence, certainly an aggravating factor.
HIS HONOUR: Isn't that actually in the offence, isn't that the aggravation in the offence itself? I've only got to take that into account as an aggravating factor.
[CROWN PROSECUTOR]: I'm not going to submit that as an aggravating factor your Honour I would say that's wrapped up in the robbery.
HIS HONOUR: I think that was the aggravating factor in the actual section, so I can't take that into--
[COUNSEL (for the applicant)]: That's perhaps my error of my analysis of the matter in terms of that his role--
HIS HONOUR: The only one I can think of - there were two aggravating factors that I can think of, that's on bail and also in company but I don't think there's anything else.
..."
The Remarks on Sentence
The sentencing judge recounted the facts of the offence. He made reference to the applicant's personal circumstances, including his criminal record. He noted the applicant's evidence that he was "heavily intoxicated by drugs" at the time of the offence, and observed that that was no excuse. He made brief reference to the applicant's history of drug use.
He considered the guideline judgment in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 (given in respect of offences of armed robbery, but having more extensive relevance) to be applicable. In Henry, in respect of offences of armed robbery committed by young offenders, having certain common characteristics, this Court promulgated a guideline calling for sentences between 4 and 5 years. Having regard to the applicant's early plea of guilty he allowed a reduction of 25 per cent on the sentence that he otherwise would have imposed; he further reduced the sentence by 1 month in recognition of the period that the applicant had spent in residential rehabilitation (which he considered not remotely to compare with imprisonment); and he backdated commencement of the sentence to accommodate almost 4 months the applicant had spent in pre-trial custody.
In recognition of the applicant's "considerable efforts at rehabilitation", together with his youth, and the fact that he had not previously spent time in custody, he found special circumstances, pursuant to s 44(2) of the Sentencing Procedure Act, and varied the proportion between the head sentence and the non-parole period. That resulted in a non-parole period which is 57 per cent of the head sentence, a significant reduction on the statutory proportion of 75 per cent.
In considering the objective gravity of the offence, his Honour said:
"The facts reveal a very serious offence of its kind. The co-offender seriously assaulted in an unprovoked attack a woman who was simply parking her car. This offender was a passenger on the co-offender's motorcycle. He involved himself in the offence by taking possession of the handbag that had been forcibly removed from the victim and ensuring that she did not receive it back at the scene.
The offence is aggravated by both the commission of the corporal violence perpetrated on the victim and also with having been committed in company with the co-offender. This offender was present at the commission of the offence and as such his involvement is of a higher level than someone who assists in a more remote fashion." (italics added)
In relation to the role played by the applicant, his Honour said:
"The offender's role in the offence was plainly of a significantly lower level than that of the principal offender. However, it is still a very serious matter. The offender did take a substantial role as is provided (sic) by the facts, namely of aiding and abetting the principal offender with respect to the property taken from the victim. This offender did not have any involvement in the assault of the victim, that is a clear distinction, however he observed it and he then continued to assist the principal offender by taking the victim's property. He drove away with the principal offender. He could have walked away at the point when he saw the principal offender assaulting a woman in the car. He chose to stay and assist in the continuation of the robbery. To my mind his role, while significantly less than that of Cook, is still firmly within the factors outlined in Henry. Clearly this is not a case of armed robbery. It was a case where violence was used. The range provided in Henry is therefore an appropriate one here."
The grounds of the application
Four grounds of the proposed appeal were identified. They were formulated as follows:
"1. His Honour erred in finding that the offence was aggravated by:
a. the commission of corporal violence;
b. having been committed in company with the offender.
2. His Honour erred in his consideration to the applicant's drug addiction.
3. The sentence is manifestly excessive in the light of the applicant's role in the offence; his subjective case; his drug use, which mitigated the seriousness of the offence, and his efforts at rehabilitation.
4. The applicant has a justifiable sense of grievance when considering the sentence imposed on the co-accused Cameron Cook."
At the hearing of the application, Ground 1a was abandoned.
Ground 1b
Section 21A(2) of the Sentencing Procedure Act identifies factors that (where relevant and known to the court) must be taken into account as circumstances of aggravation. One of these is that the offence was committed in company: s 21A(2)(e). There is an important suffix to s 21A(2). The suffix provides:
"The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence."
It was not in contest that the sentencing judge took into account, as an aggravating factor, the fact that the offence was committed in company.
The argument advanced on behalf of the applicant in support of this ground at times bordered upon a challenge to the applicant's plea of guilty to the offence with which he was charged. Leaving that aside, reduced to its most simple, a significant part of the applicant's argument was that his liability as a principal in the second degree hinged upon his being present in company with the principal offender (Cook), and that his being in company was therefore an element of the offence, and that it followed that to take into account that the offence was committed in company as an aggravating factor contravened the prohibition in the suffix to s 21A(2).
In Osland v The Queen [1998] HCA 75; 197 CLR 316, McHugh J wrote of various forms of accessorial liability. Relevantly for present purposes, his Honour wrote:
"Those who were merely present, encouraging but not participating physically, or whose acts were not a substantial cause of death, were regarded as principals in the second degree ..."
In other words, presence at the scene of a crime with another is essential to an offence committed as principal in the second degree.
The response on behalf of the Crown was not to attempt to deny that being in company is integral to the offence which the applicant admitted, but to rely upon the concessions made by his counsel during the course of argument. As was argued in reply on behalf of the applicant, this was a concession of law, and one which was not properly made. Certainly, it was the concession made on behalf of the applicant that led his Honour into error, but lead him into error it did.
In my opinion, taking into account that the offence was committed in company was a clear contravention of the direction contained in the suffix to s 21A(2).
In this respect, error has been established. I would uphold Ground 1 of the appeal.
Ground 2: the applicant's drug addiction
It is well established that drug addiction is not, of itself, a circumstance that mitigates the gravity of an offence, nor one that necessarily calls for amelioration in sentence. For that proposition, it is necessary to go no further than the various judgments in this Court in Henry. Those judgments also make clear that the relevance of drug addiction in a sentencing exercise is a matter of some complexity: see, for example, the judgment of Wood J (as he then was) at [273].
The complaint made on behalf of the applicant appears to be twofold: (i) that the sentencing judge failed to give due weight to the evidence that the applicant was intoxicated at the time of the offence, and therefore less capable of exercising "appropriate judgment" about his involvement in the offence; and (ii) that the sentencing judge failed to give due consideration to the applicant's drug history, and, importantly, the life circumstances that preceded and accompanied that drug addiction.
I reject that criticism. His Honour made considerable reference to the psychologist's report, which set out in substantial detail the applicant's circumstances, including his first exposure to drugs (through his father) and his escalating drug use at times when his family circumstances were unstable. For example, he said:
"Drug use has been a factor in the offender's background for quite some time. He was sentenced in 2011 for the offence of robbery in company and he was given a suspended sentence at that time and placed under Juvenile Justice supervision. In evidence he acknowledged that he committed that offence whilst he was affected by drugs. I do not have the magistrate's decision in respect of that offence but the fact that he was to be supervised by Juvenile Justice means at least that he has failed to take opportunities given to him to reform his drug use ..."
A little later, he quoted extensively from the psychologist's report concerning the applicant's drug use.
A further argument was that the applicant's efforts at rehabilitation justified "special consideration". I would also reject that criticism. The sentencing judge made reference to the applicant's rehabilitation, and expressly allowed a 1 month reduction in sentence attributable to the time spent in the residential facilities. The applicant's drug history contributed to the finding of special circumstances under s 44(2) of the Sentencing Procedure Act, which in turn resulted in the generous reduction in the non-parole period.
There was no error in the treatment of the applicant's drug history. I would reject this ground of appeal.
Ground 3: manifestly excessive?
The argument in support of this ground depended upon a number of factors, presumably to be taken in combination. These were:
·the limited role played by the applicant in the offence;
·"his subjective case";
·his drug use (which, it was pleaded, somewhat boldly) mitigated the seriousness of the offence;
·the applicant's efforts at rehabilitation.
I accept that, even having regard only to the agreed statement of facts, the applicant's role was limited. One difficulty surrounding this ground is that, as with other matters advanced on behalf of the applicant, it borders on calling into question, or going behind, the applicant's plea of guilty to the charge of aiding and abetting aggravated robbery. That plea operates as an admission of the essential elements of the offence charged. It must be taken that the applicant was, to some extent, involved in Cook's offence.
It was pointed out that, given the 25 per cent reduction for the plea of guilty, together with the 1 month reduction allowed for residential rehabilitation, the starting point for the head sentence was just over 57 months - 4 years and 9 months. The starting point for the non-parole period was 32 months - 2 years and 8 months.
In considering this ground, it must be borne in mind that the applicant committed this offence while on bail for another offence. I am unable to say that those sentences, although severe having regard to the applicant's role, were outside the range of a legitimate sentencing discretion.
Ground 4: parity
Cameron Cook appeared for sentence before Berman DCJ on 6 June 2014, 7 months after the applicant was sentenced. He faced a number of charges, one of which was the aggravated robbery of Ms X. He also pleaded guilty at an early stage, as a result of which his sentence was reduced by 25 per cent. Cook is five years older than the applicant, but his criminal record was less serious, with no prior offences of violence. He was subject to a bond at the time. The sentence imposed on Cook with respect to the aggravated robbery of Ms X was imprisonment for 3 years and 9 months with a non-parole period of 2 years and 6 months. That is, for much more serious involvement in the offence, his head sentence was 3 months longer than that of the applicant, his non-parole period 6 months longer. The applicant complains that the differential in the sentences inadequately reflects the differential in the offending.
As the Crown helpfully pointed out, because Cook was sentenced in respect of another serious offence, the sentence for which was made partially concurrent, the effect of the sentencing process is that he will be required to serve no more than 18 months for the aggravated robbery of Ms X.
I have concluded that the ground ought to succeed. Having regard to the vastly different roles played by the two offenders, the sentence imposed on Cook is such as to leave the applicant with a justifiable sense of grievance. I would uphold this ground of appeal.
Re-sentence
It becomes necessary to re-sentence the applicant. Against that possibility, an affidavit affirmed by the applicant on 12 November 2014, was admitted. He deposes to his conduct whilst in custody. He has successfully undertaken various rehabilitative programs available to inmates, as well as vocational skills courses. He is learning to cope with stress through natural means such as exercise, rather than drugs. He has had one disciplinary matter in custody, possession of an anti-depressant tablet that had not been prescribed for him. The evidence is somewhat slight, but sufficient to justify a finding that the applicant's progress towards rehabilitation is continuing.
The orders I propose would result in a reduction in both the head sentence and the non-parole period of 6 months.
The orders I propose are:
(1) Leave to appeal against sentence granted;
(2) Appeal allowed, sentence quashed;
(3) In lieu thereof, the applicant be sentenced to imprisonment made up of a non-parole period of 1 year and 6 months commencing on 13 June 2013 and expiring on 12 December 2014, with a balance of term of 1 year, expiring on 12 December 2015;
(4) Direct that the applicant be released at the expiration of the non-parole period on 12 December 2014.
ROTHMAN J: I agree with Simpson J.
WILSON J: I agree with Simpson J.
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