R v KRASNIQI No. SCCRM-98-135 Judgment No. S6930

[1998] SASC 6930

R v KRASNIQI

Court of Criminal Appeal

Coram:  Millhouse, Olsson and Debelle JJ

1. MILLHOUSE J (ex tempore).      I agree with all that my brother Debelle has said.  I particularly emphasise what he said at the end of his reasons, that a term of imprisonment of three years and 11 months for armed robbery and a non-parole period of three years is extraordinarily lenient.  It is explained by the particular factors in this case and must not be taken in any way as an indication that this court has now a more lenient view of the crime of armed robbery.  No-one should regard it in any way as a precedent for sentences in other matters.

2. The appeal will be allowed to the extent of reducing the head sentence for armed robbery from four years and eight months to three years and 11 months.  Taking into account the eight months to be served because of the revocation of the suspended sentence, that makes a total of four years and seven months.  We fix a new non-parole period of three years.   The sentence is to run from 21 May 1998. 

1. DEBELLE J (ex tempore).     This is an appeal against sentence. 

2. The appellant pleaded guilty to the crime of armed robbery.  He committed the offence in the company of two others, Rugari and Shabani.  The appellant was sentenced to imprisonment for a period of four years and eight months.  At the time he committed the offence, the appellant was on a good behaviour bond imposed as a condition of a suspended term of imprisonment.  The term of imprisonment was for eight months for the offence of breaking and entry.  The sentencing judge revoked the suspended sentence.  This resulted in a head sentence of five years and four months.   The judge fixed a non-parole period of four years. 

3. Rugari was sentenced to a period of imprisonment for four years with a non-parole period of two years and six months for his involvement in this offence.  His sentence was suspended upon entering into a bond to be of good behaviour for a period of three years.  Shabani was sentenced to a period of imprisonment of four years and ten months.  A non-parole period of three years was fixed.  His sentence, too, was suspended upon him entering into a bond to be of good behaviour for a period of three years. 

4. The appellant appeals on the ground that the sentence is manifestly excessive.  There are, broadly speaking, two grounds upon which the appeal is based.  The first is that there has been a breach of the principles of parity in that there is too great a disparity between the sentences for these co-offenders.  The appellant points to the disparity between the head sentences ordered in respect of each offender and the fact that he must serve his non-parole period in custody while his co-offenders do not.   Secondly, the appellant complains of a factual error made by the sentencing judge. 

5. The crime involved the robbery of a supermarket at Clovelly Park.  At about 9.30 pm  on 30 October 1997 the manager of the supermarket locked the rear door of the store.  He was the last to leave the supermarket.  He was suddenly approached by the appellant and Shabani.  He was pushed against the door by Shabani, who was wearing a balaclava.  Shabani demanded that the manager unlock the door.  The manager did so and turned off the alarm.  The appellant then entered the store with the manager and Shabani.  The appellant was carrying a pistol.  The manager was forced to open the safe.  He was then handcuffed and made to kneel on the floor.  The appellant was pointing the pistol at the manager.  Cash was taken from the safe. It totalled about $3,950.  Shabani pulled the telephone cable out of the wall.  The appellant and Shabani left the store.  Rugari's involvement was to drive the motor car.  He drove up to the store and drove the appellant and Shabani away. 

6. The robbery had been planned by Shabani and Rugari.   The sentencing judge found that Shabani had made a reconnaissance of the store a few days before the crime.  He had also spoken to an employee of the store for the purpose of getting some information concerning the management of the store.  Shabani had discussed the details with Rugari.  Rugari had purchased balaclavas for himself and Shabani.  He had also purchased a pair of handcuffs.  Either Shabani or Rugari had also purchased some gloves.  Shabani had also purchased a pair of handcuffs.  One set of handcuffs was used to incapacitate the manager.  Rugari and Shabani also had bags for taking away any money that they might obtain from the safe.  Shabani wore a balaclava on the night of the crime.   It is not clear whether Rugari also wore a balaclava. 

7. The appellant had not been involved in any way in the planning of the robbery.  He did not become involved until the night of the robbery when Shabani called at his home and asked to borrow the appellant's pistol.  The appellant was not prepared to lend the pistol.  Instead, he decided to participate in the robbery.  It appears that he had some misguided view that his presence would assist Shabani, who was his cousin.  Shabani was just over 18 years at the time of the crime and the appellant was then aged 22 years.   Rugari was aged 19 years. 

8. The sentencing judge said that, but for the pleas of guilty, he would have ordered a head sentence of seven years for the appellant, six and a half years for Shabani and six years for Rugari.  Although the sentencing judge stated the relevant facts as they affected each offender, he did not indicate the grounds upon which he fixed the different starting point for the head sentence for each offender.  Where a sentencing judge does discriminate between co-offenders and determines upon a different starting point for the purpose of fixing each sentence, it is desirable that the grounds upon which the judge has relied for that purpose be stated.  In this case, it seems that in the case of Rugari the sentencing judge has relied on the fact that, although he discussed the robbery with Shabani, he did not reconnoitre the supermarket before the robbery and that his involvement was limited to that of being the driver.   It also appears that the appellant received a heavier sentence because he had not talked Shabani out of the idea of proceeding with the armed robbery.  The sentencing judge said: 

   “I consider it very likely that you could have talked him out of the whole idea of committing the robbery if you had wanted to.  Shabani himself says "I wanted him to say not to do it."  It may well be that if you had given some sound and sensible advice to Shabani when he called to see you on the night of the robbery, none of you would be before me now.”

9. When discounting the head sentences from his starting point, the judge had regard to the extent to which each offender co-operated with the police.  In this respect, it should be noted that all three had initially denied any involvement in this crime.  Shabani and Rugari later co-operated with the police but the appellant continued to deny his involvement.  Rugari acknowledged his involvement a very short time after the crime.  He made fairly full admissions.  A letter from the investigating officers, which was placed before the sentencing judge, stated that without Rugari's assistance the investigation may not have been satisfactorily concluded.  The judge found the information provided by Rugari entitled him to a further discount above that which he would have been entitled by reason of his plea of guilty.  In the case of Shabani, the sentencing judge found he had co-operated with the police to a greater extent than the appellant, but not to the same extent of Rugari.  No other basis for discriminating against the appellant and Shabani appears by the remarks made the sentencing judge.  As already mentioned, all three received a discount for their respective pleas of guilty.

10. Mere disparity in sentences imposed on co-offenders is not, standing alone, a ground for intervention by an appellate court.  The difference between the sentences must be manifestly excessive and call for the intervention of the appellate court in the interests of justice, which, in this context, requires that sentences imposed upon co-offenders ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice is not being done.  These principles are noted in Lowe v The Queen (1984) 154 CLR 606 and were re-affirmed in Postiglione v The Queen (1991) 71 ALJR 875 where (at 878) Dawson and Gaudron JJ noted that:

    “As between co-offenders there should not be a marked disparity which gives rise to a justifiable sense of grievance.”

Later they said:

“Discrepancy or disparity is not simply the imposition of different sentences for the same offence, rather it is a question of due proportion between those sentences that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.”

1. As already mentioned, the appellant asserts there are two grounds of disparity.  The first is that he has been required to serve a custodial sentence while his co-offenders have received suspended sentences.  The second is that there is no basis for the discrepancy in the respective head sentences.  The appellant does not contend that the sentence imposed was outside the range of sentences available to the sentencing judge but, instead, there is no basis for the disparity between the respective sentences. 

2. It is readily apparent that there is a manifestly excessive disparity between the sentence which the appellant has received and that which has been ordered in respect of his co-offenders.  There is the difference in the head sentences to which I have already referred and, more significantly, the fact that he is being required to serve a custodial sentence while his co-offenders are not.   The fact that his co-offenders have received a suspended sentence might be said to be an extremely merciful exercise of the sentencing discretion. 

3. The suspension of the sentences of the appellant’s co-offenders creates a great deal of difficulty when approaching this sentence.  The offence of armed robbery is a very serious offence.  There was nothing about the commission of this offence which made it less serious than many others which have occurred.  The seriousness of the offence, coupled with the unfortunate prevalence of the offence, has the consequence that it should be a rare occasion indeed that a sentence of imprisonment for the offence will be suspended.  It is not unreasonable to note that the appellant's co-offenders might be regarded as being very fortunate indeed in that their sentences have been suspended. 

4. The difference between the head sentences is based on the assessment by the sentencing judge of the different degrees of criminality for the commission of this offence.  That has been coupled with the observation that the appellant had the opportunity of talking his cousin Shabani out of the commission of the offence and failed to do so.  That latter observation is, I think, unjustified, and for the reasons which follow, indicates that the sentencing judge has taken an irrelevant factor into account. 

5. The history of this matter indicates that Shabani had a disposition to say whatever he thought might assist him in minimising his culpability.  That had led to a disputed facts hearing which had the consequence that facts were found to be different than those which had been advanced by counsel on behalf of Shabani.  In the course of sentencing, the learned judge relied on a remark made by Shabani to a psychiatrist. Shabani had asserted that the appellant had the opportunity of talking him out of the commission of this offence.  That was a very unsatisfactory basis for concluding that the appellant had this opportunity and failed to accept it.  There was nothing to indicate that the appellant had any power of persuasion over his younger cousin or, indeed, that he had any capacity to lead him.  That is indicated by the fact that the appellant had not long before been discharged from Glenside where he had been treated for a psychiatric condition which belies a capacity to lead or persuade. 

6. Furthermore, Shabani and Rugari were on their way to commit the crime, a crime which they had been planning for several days.  They called at the appellant's premises for the purpose only of obtaining a weapon to assist them in their endeavour.  It is most unlikely in the circumstances that the appellant, even if he had had the mental capacity to do so, would have been in a position to dissuade them from their criminal venture.  In my view there was no ground at all for giving any weight to the somewhat opportunistic remark made by Shabani that he wanted his cousin to tell him not to engage in this offence. 

7. The fact that the sentencing judge had regard to this irrelevant factor, together with the manifest disparity in sentence in that the appellant is required to serve a custodial sentence which has been suspended in the case of his co-offenders, justifies this court in interfering with the sentence which was ordered in respect of the appellant. 

8. In addition to the factors that I have mentioned, I believe that there is no basis for holding that the criminality of this appellant was greater than that of his co-offenders, even if regard is had to his prior criminal record.  First, that record was not so serious as to call for a marked difference in sentence.  In 1992, as a juvenile, he had committed the offence of breaking and entering.  His next serious offence occurred in 1997 when he was convicted for breaking and entry, the offence the subject of the suspended period of imprisonment.  His other offending has been of a behavioural nature, much of which is explicable by his disturbed mental condition. 

9. Shabani and Rugari had planned this crime and had planned it for several days.  Both took part in the commission of the offence with the appellant.  The fact that Rugari took no greater part than driving the motor car does not, in relation to a crime of this kind, have the consequence that he is to be treated any more leniently than his co-offenders.  It is apparent that the planning of this crime involved one person being ready with the motor car to drive those who had perpetrated the actual robbery in being able to flee the scene as quickly as possible.  Rugari’s involvement was as material and important to the commission of this offence as those who participated in the actual robbery.  Thus, in one sense, the criminality of Shabani and Rugari was greater than that of the appellant, in that they had both planned and participated in the robbery.  Certainly the fact that the appellant was the person carrying the pistol was an aggravating feature of his involvement in this crime.  However, when all things are balanced out, the conclusion is reached that the appellant's degree of criminality was no greater than that of Shabani and Rugari, even allowing, as I say, for his prior criminal record. 

10. There was no basis, in my view, for differentiating in the head sentences chosen as the starting point for the calculation of the ultimate sentences which were ordered.   That fact, together with the fact that the appellant is required to serve his custodial sentence, gives rise to what, in my view, is a justified sense of grievance and is a further factor justifying this court in intervening. 

11. For all of these reasons, I believe that the sentence ordered should be set aside and the appellant sentenced afresh. 

12. In my view, given the serious nature of this offence, the starting point should be the range of penalties indicated by the sentencing judge.  However, given that he has adopted, as a starting point, a sentence of six years and six months in the case of Shabani and a sentence of six years in the case of Rugari, I believe that the appropriate starting point for this appellant is a head sentence of six years and three months.  For the purposes of calculating the ultimate head sentence, I would adopt the same basis as that adopted by the sentencing judge and discount that sentence by a period of 21 months for the plea of guilty and further reduce it by a period of seven months for the period of imprisonment which he had already served before he had been sentenced.  That results in a head sentence of three years and 11 months. 

13. In my view, the sentencing judge correctly decided to revoke the suspended sentence.  The offence of armed robbery is so serious that it called for no other conclusion.  Thus, to the head sentence of three years and 11 months must be added the eight months of the suspended sentence, making a total sentence of four years and seven months. 

14. The next task is to fix the non-parole period.  This is a particularly difficult task, given the fact that the sentence ordered for his co-offenders has been suspended. Where an offender is subject to a bond to be of good behaviour as a condition of a suspended sentence and commits an offence, it would be a rare occasion, indeed, when he could expect to have a further sentence of imprisonment suspended.  I do not think that there is any basis upon which this appellant can expect to have his sentence of imprisonment suspended. 

15. At the same time, some effect must be given to the principles of parity.  This is, I think, a very special case.  It is a special case because of the extraordinary leniency extended to the appellant's co-offenders who have had their sentences suspended.  For those reasons, I would order a non-parole period as low as three years.  I am encouraged to adopt that course because the appellant’s prior offending is not so serious that a high non-parole period is called for.  Similarly, this will be the first occasion upon which this appellant has been required to serve a custodial sentence.  Room must be left for the possible rehabilitation of this young offender.  I should add that this should not be taken as any indication that this court will, on other occasions, order so lenient a non-parole period in relation to the crime of armed robbery. 

16. It would be apparent from the reasons that I have given that there are particular difficulties about this case which have the consequence that, in every respect, it must be seen as a very special case.  It is sufficiently exceptional that it would be difficult to rely on in the future by any other offender. 

17. For these reasons, I would allow the appeal.  I would fix a head sentence of four years and seven months and a non-parole period of three years.  It will commence on the date of the original sentence.