R v Kyroglou

[1999] NSWCCA 106

CITATION:	REGINA v KYROGLOU & TSOUKATOS [1999] NSWCCA 106
FILE NUMBER(S):	CCA 60595/98; 60596/98
HEARING DATE(S):	18/03/99-19/03/99
JUDGMENT DATE:	12 May 1999
PARTIES :	Bill Kyroglou Theo Tsoukatos
JUDGMENT OF:	Spigelman CJ at 1; Wood CJ at CL at 4; Newman J at 7; Hulme J at 64; Simpson J at 83

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/0136; 98/21/0135
LOWER COURT JUDICIAL OFFICER:	Prowse ADCJ

COUNSEL:	S J Odgers (Kyroglou) S J Odgers (Tsoukatos) P G Berman (Crown)
SOLICITORS:	Konstan Lawyers (Kyroglou) Konstan Lawyers (Tsoukatos) R Gray (Crown)
CATCHWORDS:	CRIMINAL LAW; sentencing; break, enter and steal, s112(1) Crimes Act 1900; armed robbery, s97(1) Crimes Act 1900; robbery, s94 Crimes Act 1900; appropriate sentence; double jeopardy; discretion to dismiss Crown appeal despite inadequate sentence
ACTS CITED:	Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW) Sentencing Act 1989 (NSW)
DECISION:	KYROGLOU; Appeal dismissed; TSOUKATOS; Appeal against sentence imposed for offence of armed robbery contrary to s97(1) of the Crimes Act 1900; 1 Appeal allowed; 2 Substitution of sentence of penal servitude for five years consisting of a minimum term of one year to commence on 14 February 1998 and to expire on 13 February 1999, and an additional term of four years to commence on 14 February 1999 and expire on 13 February 2003.; Appeal against sentence imposed for the offence of break, enter and steal contrary to s112(1) of the Crimes Act 1900; 1 Appeal dismissed; Appeal against sentence imposed for the offence of robbery contrary to s94 of the Crimes Act 1900; 1 Appeal dismissed

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IN THE COURT OF
CRIMINAL APPEAL

60595/98
60596/98

SPIGELMAN CJ
WOOD CJ at CL
NEWMAN J
HULME J
SIMPSON J

Wednesday 12 May 1999

REGINA v Bill KYROGLOU
REGINA v Theo TSOUKATOS

JUDGMENT

1 SPIGELMAN CJ: I have read in draft the reasons of Newman J, Simpson J and the additional observations of Wood CJ at CL. I agree with what each of their Honours have said about the errors of principle made by the sentencing judge and the manifest inadequacy of the sentence he imposed.
2 In the case of Kyroglou, I agree that the appeal should be dismissed for the reasons given by Newman J.
3 In the case of Tsoukatos, I agree with Simpson J, for the reasons her Honour has given, that a return to full time custody would be unduly harsh in the circumstances as they now appear. I agree with the orders proposed by her Honour.

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IN THE COURT OF
CRIMINAL APPEAL

No. 60595/98
60595/98

SPIGELMAN CJ
WOOD CJ at CL
NEWMAN J
HULME J
SIMPSON J

Wednesday 12 May 1999

REGINA v Theo TSOUKATOS
REGINA v Bill KYROGLOU

JUDGMENT

4 WOOD CJ at CL: I have read in draft the judgment of Newman J, in relation to the respondent Kyroglou. I agree with the orders proposed and with the reasons given for them. I have also read in draft the judgments of Newman, Hulme, and Simpson JJ in relation to the respondent Tsoukatos. I agree with the orders proposed and with the reasons given by Simpson J.
5 I wish only to add that the observations made by the sentencing Judge, in the course of giving reasons in the matter of Kyroglu, but obviously also taken into account when dealing with Tsoukatos, as noted by Newman J (at para 25), were inappropriate. Whatever private views his Honour may have held in relation to the debate concerning drug use, and in particular whether it should be dealt with as a socio-medical problem, or as a matter in which the criminal jurisdiction of the Courts should be invoked, they were inappropriate and irrelevant for the exercise which he was required to undertake. The respondents appeared before his Honour charged with serious criminality. They were to be sentenced according to the law, which provided, in relation to Tsoukatos, maximum penalties respectively of 14 years for two counts (s 94 and 112(1) of the Crimes Act) and of 20 years for the remaining count (s 97(1)). In relation to Kyroglu, the maximum penalties available for the offences charged were respectively 5 years (s 117) for one count, 14 years (s 112(1) for the second count and 20 years (s 97(1) for the third count.
6 It was the duty of the sentencing Judge to reflect the legislative will as declared in the Crimes Act, and not to subvert that will be reference to his own views as to the desirability or otherwise of bringing before the Courts persons who commit serious offences, but who happen also to have a problem with drugs. This error undermined the entire sentencing process which his Honour undertook. But for the wholly exceptional progress that each respondent has made with his rehabilitation, and but for the circumstances noted by Simpson J, I would have considered it necessary to allow these appeals, and to resentence each offender. However, I agree that in the exercise of the discretion reserved to this Court, it would be inappropriate to do so.

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IN THE COURT OF

CRIMINAL APPEAL

60596/98
60595/98

SPIGELMAN CJ
WOOD CJ at CL
NEWMAN J
HULME J
SIMPSON J

Wednesday 12 May 1999

REGINA v Theo TSOUKATOS
REGINA v Bill KYROGLU

JUDGMENT

7 NEWMAN J: These are Crown appeals brought by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912. Both respondents were sentenced by his Honour Acting Judge Prowse at the Parramatta District Court on 19 August 1998.
Theo TSOUKATOS:
8 This respondent pleaded guilty to three counts on an indictment. First, he pleaded guilty to a count of break, enter and steal (s 112(1) of the Crimes Act 1900, maximum penalty penal servitude for fourteen years), second, to a count of armed robbery (s 97(1) of the Crimes Act, maximum penalty penal servitude for twenty years) and third, to a count of robbery ( s 94 Crimes Act, maximum penalty penal servitude for fourteen years).
9 In addition, he asked that no less than nine other offences be taken into account by the learned sentencing judge. These offences were contained on three Form 2 documents raised under the Criminal Procedure Act 1986. These offences included break, enter and steal; malicious damage; steal motor vehicle; two charges of possess a prohibited drug; one offence of goods in custody, one of fraudulently altering number plates; one of possess house breaking implements and a final offence of stealing.
10 Having taken these matters into account together with the matters contained in the indictment, his Honour sentenced the respondent as follows:
1. break, enter and steal: - penal servitude for a fixed term of six months.
2. armed robbery: - penal servitude for two years consisting of a minimum term of twelve months with an additional term of twelve months.
3. robbery:- penal servitude for a fixed term of twelve months.
11 The respondent, having been taken into custody on 14 February 1998, his Honour back dated the sentences to commence on that date. This meant that at the time of the hearing of the appeal, the respondent had been released from custody.
12 I turn then to the facts of the matter.

Break, enter and steal:
13 This offence was committed in company with the respondent, Kyroglu. Both respondents went to suburban premises in Sydney, Kyroglu going to the front door to keep watch, Tsoukatos going to the rear of the premises and gaining entry by forcing a door. On entering the premises, Tsoukatos gathered a number of items of jewellery following which the pair decamped.
14 A neighbour, having observed the presence of the respondents, reported the matter promptly to police, which report resulted in the pair being apprehended. The stolen jewellery, all of which was recovered, was estimated to have a value of $30,000.
Armed robbery:
15 Tsoukatos, at about 11 pm on 30 December 1997, went to Kyroglu’s residence. They then entered Tsoukatos’ van and drove to a late night chemist shop in suburban Sydney. Kyroglu entered the chemist shop and purchased milk. Tsoukatos remained in his van where he injected himself with heroin. When Kyroglu returned to the van, Tsoukatos, having armed himself with a syringe which was filled with red liquid, entered the chemist shop. He had donned a brown leather jacket, a bandanna type mask and a black beanie. He approached the pharmacist on duty (who was aged sixty-one years) and threatened him with the syringe demanding that the pharmacist open the till. He then grabbed the pharmacist by the arm, forced him to the till and threatened to stab him with the syringe. Under this duress the pharmacist removed notes from the till and put them in a bag.
16 Tsoukatos then ran to the van which was driven away by Kyroglu. However, Kyroglu’s driving was of such a character as to cause patrolling police to pull the van over. In turn police had been called to the scene of the crime and a contact with the patrolling police led to the arrest of both respondents. The proceeds of the crime, namely cash in the sum of $520, was recovered.
Robbery:
17 This offence was carried out on 27 December 1997 by Tsoukatos and an unnamed accomplice. On this occasion, while Tsoukatos was driving his van in suburban Sydney, he and his accomplice observed a fifty-five year old female walking along the street carrying a handbag. The pair agreed to rob her of that bag.
18 The unknown accomplice then left the van and approached the woman from behind, grabbing the strap of her handbag. A struggle ensued in which the strap of the handbag broke allowing the accomplice to take the bag. He ran back to Tsoukatos’ vehicle and the pair drove away. The victim of this encounter suffered an injury to her right shoulder. Her handbag contained $80 in cash as well as cards and personal effects. Fortunately, witnesses recorded the van’s registration number. Tsoukatos was arrested on 31 December 1997 in relation to other matters some of which included the charge of armed robbery to which reference has already been made.
19 Unlike his response when interviewed by police in relation to the armed robbery and the break, enter and steal charges, Tsoukatos admitted his participation in this offence but declined to name his accomplice.
20 At the time of the commission of these offences, Tsoukatos was subject to a recognizance to be of good behaviour for eighteen months which had been imposed on 23 January 1997.
21 In relation to the charge of break, enter and steal and a number of the offences on the Form 2 documents, Tsoukatos was on bail for offences of armed robbery committed on 31 December 1997.
22 Additionally, Tsoukatos, having failed to comply with a community service order which had been imposed on an earlier date, was sentenced to a period of six months imprisonment which dated from 13 February 1998.
23 It should be noted that the Crown Prosecutor appearing before the learned sentencing judge, incorrectly advised him that Tsoukatos’ custody was solely referable to the offences for which Tsoukatos was before his Honour for sentence.
24 However, the fact that he was serving a sentence of six months for his failure to comply with a community service order was specifically referred to in a handwritten report by a Probation and Parole officer which was subsequently tendered to his Honour.
25 In his remarks on sentence his Honour in dealing with Tsoukatos, at no stage mentioned: -
1. that he was in breach of a bond at the time of the commission of the offence.
2. that he was on bail at the time the break, enter and steal offence took place. (As well as other matters on the Form 2).
3. that his custody was referable to his failure to comply with a community service order.
26 These objective features represent a very serious breach of the criminal law. Serious not only because of the nature of the crimes involved but also because of the aggravating feature involving breaches of bail and a bond.
27 Furthermore, his time in custody which his Honour took into account was referable, as we have detailed, to a matter other than those with which his Honour was dealing.
28 His Honour took into account a number of subjective features. The respondent was aged twenty-six years at the time of the sentence having been born on 15 February 1972. He had a criminal record involving, in his adult life, crimes of break, enter and steal and assault, which latter two offences had given rise to the community service order and the bond to which reference has already been made.
29 A report from Dr Strum, psychiatrist, was tendered to his Honour. Dr Strum’s report includes an account given by the respondent to him that on finding, at about the age of twenty-one years, that he had been adopted, he became depressed.
30 While Dr Strum found that there were symptoms of depressive illness at that time he did not believe that those symptoms were suggestive of severe depression. Indeed, Dr Strum found no evidence of psychiatric illness on his examination on 24 April 1998. He expressed the view that this respondent’s criminal activities were related to his drug addiction.
31 The subject of drug addiction and its relationship to the commission of crimes was the subject of remarks made by the sentencing judge particularly when dealing with Kyroglu but his remarks were plainly directed to the position of both respondents. He observed at one stage:
“It is a shame that the addiction to drugs and society’s completely ridiculous attitude to the treatment of people who have a medical problem sees him sitting in the dock as opposed to being subjected to medical treatment for what is a medical problem.”
32 As I have said, while his remarks were specifically directed to the situation of Kyroglu, it is plain that the tenor of his remarks is indicative that his Honour took this matter heavily into account when dealing with Tsoukatos.
33 In Tsoukatos’ case, putting to one side entirely what the Court has stated in relation to guide lines relating to sentences for the offence of armed robbery where obtaining funds for the purchase of drugs is the motive, I am of the view that his Honour fell into error in imposing the sentences which he did on this respondent.
34 As I have pointed out he made no mention of aggravating features in the matter including breach of bail and of bond. In the three principal crimes with which his Honour was dealing, the sentences passed were manifestly inadequate when these crimes are looked at individually. All the more so when the totality of the respondent’s criminality is assessed.
35 While it is unfortunate that the sentencing order which I propose will result in the respondent being returned to custody that event is the direct consequence of the manifestly inadequate sentence passed by his Honour.
36 In formulating an appropriate sentencing order I have taken into account the question of double jeopardy. I have also taken into account additional evidence tendered before this Court including a further report from Dr Strum as a result of further interviews held by that psychiatrist with the respondent on 1 and 4 March 1999. Additionally, the fact that the respondent is to be returned to custody while his co-offender will remain at liberty is matter which calls for a lesser sentence than that which would normally be imposed.
37 I note that Dr Strum is of the view that the respondent does have a number of things in his favour including, in Dr Strum’s view, that the respondent is now taking responsibility for his actions.
38 I also take into account the fact that he has support from his family. However, it is apparent from Dr Strum’s report that the respondent’s participation in drug counselling has not been extensive either while he was in custody or in the short time he has been at liberty since his release. I find that while the respondent has made some progress in terms of rehabilitation since he went into custody, that progress is insufficient to cause the Court to exercise its discretion and not impose a term of additional custody.
39 The sentence I now impose is, for the reasons I have advanced, a lesser sentence than that which should have been imposed upon the respondent by the sentencing judge. In structuring the sentence I have accepted the sentencing judge’s finding that special circumstances exist and have accordingly varied the ratio between the minimum and additional terms differently from that stipulated in the Sentencing Act.
40 In my view a total sentence of five years should be imposed for the crime of armed robbery consisting of a minimum term of three years and an additional term of two years.
41 For the crime of break, enter and steal a concurrent fixed term of penal servitude of three years should be imposed.
42 For the crime of robbery a concurrent fixed term of three years should be imposed.
43 I am also aware that the sentencing order we are about to make gives the respondent a benefit for the sentence of six months for his failure to comply with the community service order to which reference has already been made. I have done this as a matter of discretion taking into account the concept of double jeopardy.
44 I propose the following orders:
1. Appeal allowed.
2. Sentence quashed and in lieu thereof a minimum term of three years commencing on 14 February 1998 and expiring on 13 February 2001 with an additional term of two years commencing on 14 February 2001 and expiring on 13 February 2003 be imposed for crime of armed robbery. A fixed term of three years commencing on 14 February 1998 and expiring on 13 February 2001 be imposed for the crime of break, enter and steal. A fixed term of three years commencing 14 February 1998 and expiring on 13 February 2001 be imposed for the crime of robbery.
Kyroglu:
45 As I have already stated this respondent was sentenced at the same time as the respondent Tsoukatos by his Honour Acting Judge Prowse on 19 August 1998.
46 Before his Honour the respondent pleaded guilty to the crimes of break, enter and steal and accessory after the fact to armed robbery in which crimes he was acting as an accomplice to Tsoukatos.
47 He also pleaded guilty to a crime of larceny in which again he was acting as an accomplice with Tsoukatos. That crime of larceny was one of the matters contained in the Form 2 documents which were before the learned sentencing judge in relation to Tsoukatos’ criminal activities. The maximum penalty for that crime of larceny is penal servitude for five years.
48 In the event his Honour sentenced Kyroglu as follows:
1. In relation to the crime of break, enter and steal, penal servitude for a fixed term of six months.
2. Larceny, penal servitude for a fixed term of three months.
3. Accessory after the fact to armed robbery, penal servitude for twelve months comprising a minimum term of six months with an additional term of six months.
49 The sentences, as was the case with Tsoukatos, were to commence from 14 February 1998, the date upon which, like Tsoukatos, he had gone into custody.
50 All of this means that in effect Kyroglu was released as of the date of sentence by the trial judge. Unlike Tsoukatos, Kyroglu had no matters taken into account pursuant to the Criminal Procedure Act.
51 The facts in relation to the crime of accessory after the fact to armed robbery and break, enter and steal have already been detailed in the matter of Tsoukatos.
52 The larceny offence involved Tsoukatos and Kyroglu breaking into a motor vehicle and stealing the vehicle’s cassette stereo. As was the case in the offence of break, enter and steal, Kyroglu acted as a lookout while Tsoukatos broke into the vehicle.
53 At the time of the commission of these offences Kyroglu was subject to a recognizance to be of good behaviour for three years which had been imposed at the Balmain Local Court on 13 December 1995. Furthermore, he was on bail at the time of the commission of the offence of break, enter and steal, for the offence of larceny and accessory after the fact to armed robbery.
54 The sentencing judge again took into favourable account a number of subjective features raised on behalf of the respondent. As I have set out in dealing with the respondent, Tsoukatos, his Honour made express reference to the relationship between the respondent’s drug addiction and the commission of the offences.
55 Again, a report from Dr Strum was before his Honour. That report followed an interview had by that practitioner with Kyroglu on 29 April 1998. Dr Strum, as with Tsoukatos, did not believe that Kyroglu was suffering from any psychiatric illness but was of the view that his criminal activities were typical of a heroin addict who was stealing to feed his addiction.
56 Dr Strum was of the view that the answer to Kyroglu’s problems was rehabilitation. Kyroglu was younger than Tsoukatos, he being twenty-one years at the time he was sentenced having been born on 17 February 1997.
57 While I agree with his Honour that Kyroglu’s culpability for his criminality was not as great as Tsoukatos this does not mean I am of the view that his Honour did not fall into error.
58 In my view particularly again having regard to the fact that at least one of the offences was committed while Kyroglu was on bail and all offences were committed at the time when he was subject to a bond, are aggravating matters. Unlike Tsoukatos’ case his Honour in fact took these matters into account. However, I am are of the view that he gave them insufficient weight when sentencing.
59 The sentences his Honour imposed for Kyroglu’s participation in the armed robbery and the offence of break, enter and steal are, when considered individually, grossly inadequate. Again, like Tsoukatos when his overall criminality is considered his Honour’s sentencing order is all the more in error.
60 In reconsidering the matter of sentence the Court had tendered to it, as was the case of Tsoukatos, a further report from Dr Strum. Not only that, we have had placed before us affidavit evidence relating to the respondent’s progress since being released from custody. Unlike Tsoukatos, Kyroglu has been actively, and it seems successfully, participating in drug counselling therapy. His family have gone to extraordinary lengths in order to participate in his rehabilitation. His father has purchased a café in a country town hundreds of kilometres from Sydney. There the respondent has been engaged in working for his family in the café far from the associates with whom he was mixing and thus far from the drug milieu in which he had been actively participating at the time of the commission of these offences.
61 If it were not for the extraordinary success of this respondent’s rehabilitation I would have been constrained to have imposed a sentence, even allowing for matters such as double jeopardy, which would have resulted in the respondent being returned to custody. Such is the success of the rehabilitation program being carried out by the respondent that I am of the view that it should exercise its discretion and not interfere with the sentence passed.
62 I stress that I have come to this view because of the extraordinary success of the respondent’s rehabilitation program and I make it plain that the favourable exercise of discretion to this respondent is exceptional in nature.
63 In Kyroglu’s case I propose that the order of the Court will be appeal dismissed.

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IN THE COURT OF
CRIMINAL APPEAL

No 60596 of 1998
No 60595 of 1998

SPIGELMAN CJ
WOOD CJ AT CL

NEWMAN J
HULME J

SIMPSON J
Wednesday 12 May 1999

REGINA -v- Theo TSOUKATOS
REGINA -v- Bill KROYGLU
JUDGMENT

HULME J:
Tsoukatos
64 Newman J has recorded the circumstances which have led to Mr Tsoukatos’ situation being considered by this Court. I can thus be briefer than might otherwise have been required.
65 At the time of the commission of the offences for which he stood for sentence, Mr Tsoukatos was subject to a recognisance, imposed on 23 January 1997 to be of good behaviour for 18 months. He had also been sentenced in May 1997 to 200 hours community service for an offence of breaking, entering and stealing. Earlier offences, committed in 1988 and 1991 may be ignored.
66 It was against this background that on 27 December 1997 he committed the offence of robbery and on 30 December 1997 the offence of armed robbery, two of the offences for which he stood for sentence. The details of these offences are described by Newman J and it is unnecessary for me to repeat them. The maximum punishment laid down for the offence of armed robbery is 20 years penal servitude. Compared with this, and given that Mr Tsoukatos was on conditional liberty at the time, the lightest sentence which could properly have been imposed on the charge of armed robbery would have involved imprisonment for a total term of 5 years including a minimum term of 3 years. But for the fact that Mr Tsoukatos had not been in prison prior to the commission of the offence, the minimum term should probably have been longer.
67 The maximum punishment prescribed for the offence of simple robbery is 14 years penal servitude and had the simple robbery charge stood alone the lightest sentence which should have been imposed for it would have included terms of not less than 18 months (minimum) and 6 months (additional).
68 Arrested late on 30 December 1997 or early the next morning, Mr Tsoukatos was granted bail on 31 December. Thus the offence of breaking, entering and stealing committed on 14 February 1998 occurred while he was both subject to the recognisance earlier mentioned and on bail. The house the subject of this charge was ransacked. The goods stolen had a value of $30,000. Some had sentimental value also. Fortunately all were recovered. The maximum penalty prescribed by Parliament for this offence is 14 years penal servitude. One may fairly ask how far this offence was from a worst case under the section. While no doubt Mr Tsoukatos’ haul could have been of greater value, the violation of the victim’s home and privacy was high on the scale of that activity. Furthermore, Mr Tsoukatos had been sentenced previously for a similar offence. By comparison with a worst case, this offence of Mr Tsoukatos, considered in isolation, itself merited a sentence which was not less than one which included a 3 year minimum and 1 year additional term - a sentence, I observe, which is only marginally over 25% of the statutory maximum, and arguably too lenient. As long ago as R v Hayes (1984) 1 NSWLR 740 it was said in strong terms that the time had come for a hardening of the policy of the criminal courts for the offence.
69 And then consideration had to be taken of the other offences the sentencing judge was asked to take into account pursuant to s21 of the Criminal Procedure Act. The criminality involved with them was required to be reflected in the sentence and “…it is wrong in principle that there should only ever be little by way of addition to the penalty imposed upon the offence charged when another offence is taken into account pursuant to s21” - Morgan v R (1993) 70 A Crim R 368 These other offences, and the dates of them, were:-
(i) 28.10.97 - malicious damage to a car while attempting to steal the car stereo

(ii) 28.10.97 - stealing a motor bike worth some $2000.
(iii) 30.12.97 - breaking and entering a house and stealing a handbag from it.
(iv) 30.12.97 - stealing a stereo from a car
(v) 14.2.98 - possession of prohibited drug (2 charges)
- goods in custody
- fraudulently alter number plates
- possession of housebreaking implements.

70 The first, second and third of these offences were committed in company. Mr Tsoukatos declined to tell the police who else was involved and thus to assist in the recovery of the property stolen. Any contrition Mr Tsoukatos had in respect of these offences did not run deep.
71 Some of the charges referred to in paragraph (v) above were closely connected with the offence of breaking entering and stealing which also occurred on 14 February and it would have been appropriate to regard these as of little additional significance. However the other offences were entirely separate and not insubstantial. They were committed while on conditional liberty and, considered apart from the three offences for which Mr Tsoukatos stood for sentence, merited imprisonment which included a minimum term of not less than 2 years.
72 Recognition must also be given to the fact that Mr Tsoukatos had not complied with the Community Service Order which had been imposed in May 1997 and, prior to his appearance on the subject charges had, on this account, been sentenced to 6 months goal, commencing on 14 February 1998.
73 Simply accumulated, the minimum terms to which I have referred - I do not include the six months referred to in the immediately preceding paragraph - would total 9½ years. It would of course be quite wrong to simply adopt such a sentence because, in the case of multiple offences, principles of totality and of ensuring that the punishment does no more than reflect an offender’s overall criminality come into play. I have elsewhere - R v Spiteri [1999] NSWCCA 3 - said that I regard 10 years imprisonment as more than twice as severe as 5 years. Nevertheless, the addition does help to see in perspective both Mr Tsoukatos’ criminality and the ultimate sentence.
74 However, it is also wrong that sentences be structured so that once an offender commits one or two offences, he may commit more with impunity content in the knowledge that no, or no significant, additional penalty will be imposed. The number and nature of Mr Tsoukatos’ offences required that the sentence imposed on him be substantially greater than if he had committed only the armed robbery and received a sentence which accorded, subject to appropriate adjustments, with that indicated in the Guideline Judgment published today.
75 As general proposition I accept, as was accepted in Jurisic (1998) 101 A Crim R 259 at 278-9) that, in the circumstance of double jeopardy, the sentence this Court should impose when allowing a Crown appeal should not exceed the least sentence which should have been imposed at first instance - (although it may not be inappropriate to observe that Mr Tsoukatos was not concerned at the multiple jeopardy to which he subjected the community in the course of his depredations.). I accept also that if Mr Tsoukatos is being sent back to prison, it may be appropriate for this Court, as matter of discretion, to impose a sentence lower than it would otherwise order.
76 Should Mr Tsoukatos be returned to prison? Clearly there are some factors which argue against such a course. However most of the matters urged in that regard are not uncommonly present the when an offender comes to be sentenced. I include in these pre-sentence custody (albeit not usually for as long as the 12 months sentence the Respondent has served), opportunity for employment, efforts to desist from drug taking and perhaps assistance and some success in that regard. On the other hand, the presence of marijuana contaminated urine which was detected on 18 October 1998 - some 2 months after sentence and 12 days after he became aware that the Crown was appealing, and only 7 months ago - hardly argues that reformation is complete. It is also to be noticed that Dr Strum records that when in March 1999 the respondent was seeing him apparently in connection with this appeal, the Respondent falsely told Dr Strum that while he had been offered drugs in prison, he refused them.
77 It has been suggested that Mr Tsoukatos would be likely to suffer a justifiable sense of grievance if he were returned to prison and Mr Kyoglu were not. I do not agree. Mr Tsoukatos’ criminality was markedly greater than that of Mr Kyoglu. Courts have to draw lines and, of necessity, the difference between those who avoid imprisonment (or more imprisonment) and those who do not will sometimes not be great. If, although his offences deserved it, no further imprisonment is imposed on Mr Tsoukatos, but the minimum terms of the sentences on Messrs Tran, Henry and Barber are increased, they will have a sense of grievance. The basis of distinction - that their minimum terms had not expired at the time of the appeal - is not a very persuasive one.
78 And it is easy to place too much weight on the principle of double jeopardy and what is said to be the hardship on respondents to Crown appeals who are faced with a greater term of imprisonment than originally imposed. Every time Mr Tsoukatos committed an offence, he exposed himself to imprisonment. The prospect did not seem to worry him unduly then.
79 I acknowledge also the possibility that such rehabilitation as Mr Tsoukatos has achieved is put at risk if he is returned to prison. However, in my view he should be. In addition to the matters I have mentioned, two factors have led me to this conclusion. One is the importance of this Court ensuring so far as it can that appropriate sentences are imposed, and that both sentencing judges and potential offenders know that this will occur. The second is the injustice to the community in allowing criminality as great as Mr Tsoukatos’ to go relatively unpunished.
80 In my view the orders of this Court should be such as to impose on Mr Tsoukatos, in addition to the sentence of 6 months for breach of his community service order - a sentence which has nothing to do with the offences committed during an after October 1997 - a minimum term of imprisonment of 5 years with an additional term of 2 years. Even after account is taken of the matters referred to in the immediately preceding paragraph, nothing less adequately reflects the number and seriousness of his offences.
Kroyglou
81 I agree with the orders proposed by Newman J and with his Honour’s Reasons.
Both Matters
82 I agree with the remarks of Wood CJ at CL as to the inappropriateness of the remarks made by the sentencing judge and as to his duty to reflect the will of the legislature.

IN THE COURT
OF CRIMINAL APPEAL

60595/98
60596/98

SPIGELMAN CJ
WOOD CJ at CL
NEWMAN J
HULME J
SIMPSON J

Wednesday 12 May 1999

REGINA v Bill KYROGLOU
Theo TSOUKATOS

Judgment

SIMPSON J:
83 I have read in draft the judgment of Newman J. in relation to the respondent Kyroglou I agree with the order he proposes for the reasons he gives.
84 In relation to the respondent Tsoukatos I have come to a different view. It is unnecessary to re-state the facts and circumstances of the offences. The most serious offence for which Tsoukatos stood to be sentenced was that of armed robbery, committed on 30 December 1997. This offence carries a maximum penalty of penal servitude for twenty years (Crimes Act , s 97(1)). The respondent was sentenced to a total term of penal servitude for two years, divided into a minimum term of one year to commence on 14 February 1998 and expire on 13 February 1999, and an additional term of one year to commence on 14 February 1999 and to expire on 13 February 2000. Pursuant to s 24(1) of the Sentencing Act, the respondent was entitled to release at the expiration of the minimum term and was released accordingly.
85 On any view of the facts, in my view, the sentence imposed was manifestly inadequate. Its inadequacy is highlighted by the fact that, in imposing the sentence, the judge was (or should have been) taking into account the nine offences contained in the Form 1 pursuant to s 21 of the Criminal Procedure Act 1986. Further, at the same time, the judge was sentencing the respondent in relation to a charge of robbery committed three days earlier, and a charge of break, enter and steal, committed six weeks after the armed robbery. The commission of the earlier offence was a relevant circumstance to be taken into account in evaluating the gravity of the respondent’s conduct in participating in the armed robbery. The totality of the criminality for which he was being sentenced was required to be taken into account. A further relevant factor was that the respondent was, at the time he committed each of the offences in the indictment, subject to a recognisance to be of good behaviour. Having been arrested and charged on 31 December 1997 in relation to the robbery and armed robbery, the respondent was at liberty on conditional bail at the time of the break, enter and steal offence. On these facts alone, the sentence for armed robbery is, on its face, indicative of error. It may be that that error had its origins, in part at least, in the judge’s personal views on the policy questions intrinsic to the sentencing of offenders whose crimes are motivated by the need for money to feed drug addiction expressed in the remarks quoted by Newman J at paragraph 31 of his judgment. No matter what his Honour’s personal views on this subject may be, his task was to sentence the respondent in relation to the criminal offences to which he had pleaded guilty. It was not open to him to intrude those views into the discharge of his sentencing function: see R v Fabian (1992) 64 A Crim R 365 at 367.
86 In a Guideline Judgment to be published today and delivered concurrently with this judgment, this court propounds a total term of four to five years as the range into which it would expect sentences for offences against s 97 to fall. However, that range was expressly arrived at as applicable to offences and offenders who fall within a certain defined profile: see paragraphs 164-167.
87 While this respondent and his offences have some of the characteristics of that profile, not all are applicable to him. For example, at twenty-six years of age (the last of the offences was committed the day before his twenty-sixth birthday, the others six weeks earlier) he does not readily fall into the description of a “young offender”; and while his criminal history, as contained in the official record before his Honour, was relatively benign, the number of offences on the Criminal Procedure Act Forms, and the multiplicity of offences for which he was being sentenced, mean that the description of a person with “little or no criminal history” is inapt in his case.
88 Another factor that separates this offence from those described in the guideline is the use of the syringe filled with red liquid. Only one inference could be drawn by the victim from the use of a weapon such as this: that the syringe contained blood, and the blood was infected with the Aids virus or some other deadly or life threatening organism. A weapon more calculated to instil terror into the victim can scarcely be imagined. The use of such a weapon is, in my opinion, if not more serious than the use of a knife, then at the very least right at the outside limits of seriousness of the kind of weapon the guideline contemplates.
89 Having regard to all these circumstances, in my view, the appropriate sentencing starting point, before considering mitigating features, if the respondent stood to be sentenced in the light of the sentencing guideline, would be a total term within the range of five to six years.
90 However, there was material before this court in relation to the sentencing guideline that cannot, by reason of s 12 of the Criminal Appeal Act 1912, and s 29A of the Criminal Procedure Act be used as a reason for increasing the sentence imposed. In reviewing the sentence, and in the re-sentencing which must, in accordance with the view expressed in paragraph 85 hereof, take place, this court is confined to such material as was before the sentencing judge, and such as has properly been placed before it for that purpose. On the material before the sentencing judge, a starting point of five years would not have been inappropriate. From this, the respondent would have been entitled to some reduction for his plea of guilty.
91 There was some other subjective material before his Honour. There was a short form pre-sentence report, and a psychiatric report of Dr Strum. These disclosed that, at the age of about twenty-one, the respondent discovered, for the first time, that he had been adopted. While this cannot be said to have precipitated his criminality (he was sixteen at the date of his first appearance before a Children’s Court, and appeared again, on drug charges, before he was twenty-one) it appears that he was considerably shaken by the discovery. According to Dr Strum, he began using marijuana at fifteen, and graduated firstly to amphetamines and then to heroin, which he began using in about 1995. Because of his drug use, he had clashed with his father, but there were signs that their relationship was improving as at the date of sentencing.
92 Neither the pre-sentence report nor Dr Strum’s report gave cause for a great deal of optimism about the respondent’s prospects of rehabilitation. The author of the pre-sentence report considered that his motivation to continue with educative rehabilitative programs was questionable. Dr Strum was of the view that his criminal activities were related to his drug addiction, and that resolution of the addiction would remove the need to commit crime, but there was no material that realistically suggested, then, that he was likely to overcome the addiction.
93 There was, therefore, not a great deal before his Honour that warranted reduction in the total sentences from the starting point to which I have already alluded.
94 That is not the case before this court. A good deal of supplementary material was received, which is appropriate to be taken into account in the necessary re-sentencing process. Amongst this material was an affidavit sworn by the respondent on 15 March 1999. At that time he had served the whole of the minimum term of twelve months imposed and had been released on parole. He said that imprisonment had been the biggest shock of his life apart from learning of his adoption. He said that, despite the appalling conditions he had endured in gaol and his consequent loss of self esteem, he had gained something - he had learned that prison was a place to which he had no wish to return, and the experience had also given him the opportunity to rid himself of his heroin habit. He said that although heroin was available in gaol, he had made no attempt to acquire it, and regarded it as the cause of his incarceration in the first place. He regarded his resistance to the availability of the drug as an achievement. He annexed to his affidavit a certificate showing that he had successfully completed the Alcohol and Other Drug Awareness Programme in gaol. Since his release he has secured full time employment as a plumber, for which he holds a qualification. His employers provided a letter of support, stating that, in the time he had worked for them since his release, he had reinstated their trust and faith in him to the extent that they allowed him to work on their behalf, unsupervised, in domestic and commercial premises. They were well aware of the nature of the offences for which he was imprisoned. This court also received a progress report from the Probation and Parole Service. The officer reporting described the respondent as abiding by his pre-release arrangements and aware of and abiding by his parole conditions and accepting of his responsibilities. His parents are supportive and willing to offer whatever assistance he needs, while stating that they would not condone any criminal behaviour and would report any such behaviour of which they became aware.
95 A report from an alcohol and drug worker in the Department of Corrective Services, employed at Bathurst Gaol where the respondent served some of his term, was equally encouraging. She began by saying that it was not the usual practice of the Department to provide reports in these circumstances, but, because of the unusual circumstances of this case, she had decided to do so. She expressed herself to be very impressed with the respondent’s awareness and lack of denial of his drug problem and his insight into the behaviour that needed to be addressed, and his acceptance of responsibility for his criminal conduct. She said that the respondent had approached the Alcohol and Drug Services for assistance as soon as was practicable, had completed a Relapse Prevention Programme, and had participated in a number of counselling sessions. She noted, however, that during his time in custody, he had had two charges, one of which was of marijuana contaminated urine, on 18 October 1998, coincidental with his move to Bathurst and which she regarded as stress related. She considered his attitude and commitment to be better than those of other clients with whom she had dealt.
96 Finally, this court received a supplementary report of Dr Strum, who considered that the respondent was sincere in his expressions of regret for his offences. (In this regard it may be noted that, at the commencement of the sentencing proceedings, counsel for the respondent stated his intention of calling both respondents to give evidence, but was expressly discouraged from doing so by his Honour, who said he was satisfied to accept counsel’s instructions as relayed from the Bar table. His Honour thereby deprived himself of the opportunity to form his own impression of the respondent’s sincerity, and deprived this court of an important finding of fact. In those circumstances there is little alternative other than to accept Dr Strum’s assessment, a course I am content to take in the light of the other evidence, all of which is consistent with such a finding.)
97 There is, therefore, a great deal of favourable material evidencing true rehabilitation. That places this court in a most difficult position. There is no doubt in my mind that, at the time he was sentenced in 1998, the respondent should have been imprisoned for a substantial term. This court is obliged to re-sentence, and to impose a lengthier term, although, having regard to the special principles affecting Crown appeals, one of shorter duration than would ordinarily be called for in the circumstances.
98 Events since sentencing have, to a very significant extent, intervened to make a sentence which would return the respondent to custody inappropriate. First, the notice of appeal which is dated 7 September 1998 (nineteen days after sentencing) was not served until 6 October 1998 - six weeks after sentencing. No reason appears for the delay in service. Alone, this factor would be insignificant. Together with other factors about to be mentioned, it has some, although limited, bearing. Second, the appeal was not brought on for hearing until 18 March 1999 - almost a month after the respondent’s release. While blame for this circumstance cannot be attributed to the Crown, the principles of double jeopardy relating to Crown appeals have a special poignancy where error in the sentencing process means that a released prisoner has to be returned to custody. Third, the fact that the respondent’s case was one of those selected as illustrative for the purpose of the Attorney-General’s application for the promulgation of a Guideline Judgment in relation to offences against s 97 has caused an unusually lengthy delay in the delivery of judgment. For reasons connected only with the need to consider and determine the complex and weighty matters argued in relation to the broader issues, the respondent has been obliged to await his fate since 19 March - a period in excess of six weeks. A respondent to a Crown appeal could ordinarily expect to know the result, if not on the day of hearing, then very shortly thereafter. The significance of this was acknowledged by counsel who appeared for the Crown. At the conclusion of his submissions he specifically requested that in those cases in which the Crown was seeking a return of released prisoners to custody, orders be made as early as possible, and without waiting for publication of the Guideline Judgment. It has not been possible to meet that request but it is obvious that the time the respondent has had to wait the outcome of the appeal will have been extraordinarily burdensome. Fourth, there is evidence of a very real commitment to, and achievement of, rehabilitation, notwithstanding some initial slips while the respondent was in custody. His employment, the support of his family, and the views of the alcohol and drug counsellor at Bathurst Gaol, are particularly important in this regard. Fifth, the judgment of the court to be delivered in the case of the respondent’s co-offender, Kyroglou, will be, in the exercise of the court’s discretion, to dismiss the Crown appeal. True it is that Kyroglou was younger, faced less serious charges (break, enter and steal, larceny, and accessory after the fact of armed robbery), and had no Form 1 offences, and was at first instance sentenced to an even shorter term, with the result that he had been at liberty since 19 August 1998. Nevertheless, the principal reason for dismissing the Crown appeal is the remarkable progress he has made, with the assistance of his family, towards rehabilitation. The extent to which his family is prepared to go to assist him is demonstrated by their move to a distant country town.
99 There is, to my mind, something inherently unfair in the disparity of recognition given to Kyroglou’s rehabilitation, based on the level of his family’s support, and the lesser recognition proposed to be given to this respondent’s efforts to achieve his own rehabilitation. The support given to him by his parents should not be underestimated merely because it does not extend to the dramatic lengths to which Kyroglou’s family were prepared to go.
100 To return this respondent to custody while not taking the same course in relation to Kyroglou would, in my view, be likely to have two consequences. It would engender in the respondent a justifiable (I stress justifiable) sense of grievance (R v Lowe (1984) 154 CLR 606); and it would create a real risk of recidivism by a combination of exposing him again to the criminal element in the prison system, and the bitter resentment he would undoubtedly, and, in my view, legitimately, feel.
101 There are cases in which the well established sentencing principles concerning denunciation, deterrence (especially general deterrence) and retribution cannot be reconciled with the equally well established principle that rehabilitation is an important consideration. There are cases where the demands of the community for vengeance collide with the wider and longer term interests of the same community in grasping an opportunity to rehabilitate an offender. It is not in every such case that the rehabilitation option has to give way to the punitive. On this occasion, to select the punishment option in preference to the rehabilitative would jeopardise the substantial progress that has already been made. Despite the views I have expressed above about the inadequacy of the sentence as originally passed, I am convinced that the ends of justice do not now demand the return of this respondent to custody.
102 There is ample authority, in this and other jurisdictions, to support this approach: see R v Lattouf (unreported, NSW CCA, 12 December 1996); R v Hayes (1987) 29 A Crim R 452 at 457, 472; R v Eager (unreported, NSW CCA 1 November 1995); R v Crotty (unreported, NSW CCA 28 February 1994); R v Fabian (1992) 64 A Crim R 365 at 372, 378, 380; R v Molina (1984) 13 A Crim R 76 at 77 (Federal Court of Australia) (quoted with approval in R v Ellis (1993) 68 A Crim R 449 by Kirby P, who, however, dissented in the result in that case); see also the remarks in Molina in relation to the offender there before the court at p 79.2; R v Dowie (1989) 42 A Crim R 234 at 247 (Court of Criminal Appeal, Tasmania); R v Osenkowski (1982) 30 SASR 212 at 212-3 (Supreme Court of South Australia in Banco); R v Halewyn (1984) 12 A Crim R 202 at 205-6 (Court of Criminal Appeal, Victoria).
103 Perhaps the weightiest authority for the proposition is the decision of the High Court in R v Everett (1994) 181 CLR 295 at 305. There, in a joint judgment, Brennan J (as he then was), Deane, Dawson and Gaudron JJ wrote:

“As has been said above, the deep rooted notions of fairness which underlie the common law principle against double jeopardy require that a Court of Criminal Appeal approach an application by the Crown for leave to appeal against sentence on the basis that such leave would only granted in the rare and exceptional case. Indeed, that approach was particularly appropriate in the present cases where the effect of the sentencing judge’s orders had been that each of the appellants had been released from custody and had been permitted and encouraged to resume his place in the community and to set out on the path of rehabilitation.” (emphasis added)
104 That case concerned the principles to be applied where a Crown appeal could be brought by leave only, but the distinction is immaterial for present purposes.
105 The abhorrence of the community at the crime of armed robbery of which the respondent is guilty can adequately be reflected in the imposition of a total term within the range which should have been imposed at first instance. That term should be lengthy, and, if imposed, will serve as a reminder to the respondent of the very real risk to which he would expose himself should he re-offend.
106 The term I propose is a total term of penal servitude for five years. His Honour quite properly found, pursuant to s 5 of the Sentencing Act 1989, that special circumstances existed warranting departure from the statutory sentencing formula, and there has been no challenge to that finding. I would adopt it.
107 I propose that the total sentence of penal servitude of five years be divided into a minimum term of one year to commence on 14 February 1998 and expire on 13 February 1999, and an additional term of four years to commence on 14 February 1999 and expire on 13 February 2003. In proposing this division, I have not overlooked that, by reason of clause 10A of the Sentencing (General) Regulation 1996, a parole order may not provide for supervision for more than three years. The respondent would be at liberty on parole, unsupervised, for the last year of his sentence. I do not propose the sentence, and the division, that I do, with a view to the respondent’s having supervision for a period of four years; I do so because, in my opinion, the appropriate total term is one of five years, and for the whole of the additional term the respondent would be alive to the risk of return to custody in the event of any breach of his parole conditions, or other breach of the criminal law.
108 I am also conscious that the Crown appeal was not limited to the inadequacy of the sentence imposed in relation to the armed robbery. The offence of robbery to which the respondent pleaded guilty was an offence of the kind commonly known as bag snatching and involved the violent theft of a handbag from a fifty-five year old woman walking in daylight on a public street. The sentence imposed for this offence was penal servitude for a fixed term of twelve months. I accept the Crown’s submission that this sentence was also inadequate to express the community’s anger at the commission of offences of this kind. However, for the same reasons that I would not extend the minimum term imposed in relation to the armed robbery, and in the exercise of the Court’s discretion, I would dismiss the Crown appeal in relation to this sentence. Precisely the same applies to the sentence for the offence of break, enter and steal, which was a serious offence of its kind, involving the theft of property worth $30,000, and in respect of which the respondent was sentenced to a fixed term of penal servitude for six months. This sentence, too, was inadequate, but, again in the exercise of the court’s discretion, I would dismiss the Crown appeal.
109 There are extraordinary circumstances at play in this case. These mean that the decision is unlikely to be, and should not be, treated as a precedent for other cases.

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