Kukovec v The Queen - [2014] NSWCCA 308

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-sentenced

Legislation 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 166

Cases Cited: Osland v The Queen [1998] HCA 75; 197 CLR 316
R v Henry [1999] NSWCCA 111; 46 NSWLR 346

Category: 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kukovec v The Queen

Details

AGLC: Kukovec v The Queen [2014] NSWCCA 308
Case: [2014] NSWCCA 308
Decision Date: 12 December 2014

CaseChat Overview and Summary

In the case of Kukovec v The Queen, the appellant, Kukovec, was convicted of aiding and abetting aggravated robbery and subsequently appealed the severity of his sentence. The appeal was heard in the NSW Court of Criminal Appeal. The central issue was whether there was an error in treating the commission of the offence in company as an aggravating factor, and if the sentence was manifestly excessive. The appeal also questioned whether Kukovec's role as a principal in the second degree warranted a different sentence compared to his co-offender.

The court examined the statutory provisions under the Crimes (Sentencing Procedure) Act 1999 (NSW), specifically s 21A(2), and the precedent set by Osland v The Queen. The court considered if sufficient 'special consideration' had already been granted to Kukovec, as outlined in R v Henry. The appeal was evaluated on whether the sentence was disproportionate to the crime and whether there was a legitimate sense of grievance when considering Kukovec's role and the sentence relative to his co-offender.

In its reasoning, the court determined that there was indeed an error in treating the commission of the offence in company as an aggravating factor, leading to the appeal being upheld on that ground. The court also found that Kukovec's role as a principal in the second degree warranted a different sentence from his co-offender, thus the appeal was also upheld on the grounds of parity. Consequently, the appellant was re-sentenced. The appeal against the severity of the sentence was dismissed as there was sufficient'special consideration' already granted.

The final orders of the court involved the re-sentencing of Kukovec, reflecting the considerations of the error in the aggravating factor and the parity with his co-offender's sentence. The appeal against the severity of the sentence was dismissed, and no further action was taken on that aspect of the appeal.

Orders