Regina v Kyriacou

[2000] NSWCCA 115

CITATION:	Regina v Kyriacou [2000] NSWCCA 115 revised - 12/04/2000
FILE NUMBER(S):	CCA 60297/99
HEARING DATE(S):	17 March 2000
JUDGMENT DATE:	17 March 2000
PARTIES :	Jack KYRIACOU - Applicant REGINA - Respondent
JUDGMENT OF:	Simpson J at 1; Barr J at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/0276
LOWER COURT JUDICIAL OFFICER :	Morgan DCJ

COUNSEL :	Mr W G Roser - Applicant Mr P G Berman - Respondent
SOLICITORS:	T A Murphy - Applicant S E O'Connor - Respondent
LEGISLATION CITED:	Criminal Procedure Act 1986 Sentencing Act 1989
DECISION:	Leave to appeal granted; appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60297/99

SIMPSON J
BARR J

Friday 17 March 2000
REGINA v Jack KYRIACOU

JUDGMENT

SIMPSON J:

1    The applicant seeks leave to appeal against sentences imposed upon him by Morgan DCJ on 18 February 1999 following his pleas of guilty to a series of charges.

2 The applicant pleaded guilty to one charge of break and enter with intent to steal, four charges of resisting police officers in the execution of their duty, one of assaulting a police officer in the execution of her duty and one of stealing a motor vehicle. The first charge carries a maximum penalty of penal servitude for ten years; the assault charges carry maximum penalties of five years imprisonment, as does the motor vehicle charge. In addition, the applicant asked the sentencing judge to take into account pursuant to s 21 of the Criminal Procedure Act 1986 an offence of drive whilst disqualified and driving in a manner dangerous.

3    Morgan DCJ sentenced the applicant on the first count to penal servitude for five years, which, having reluctantly found special circumstances justifying variation of the ratio provided for in s 5(2) of the Sentencing Act 1989, she divided into a minimum term of three years and an additional term of two years. On each of the other counts she sentenced the applicant to a fixed term of imprisonment for twelve months to be served concurrently with the lengthier sentence. She specified that each sentence was to commence on 18 February 1999, the day on which the sentence was imposed. The applicant seeks leave to appeal against those sentences.

4    The offences the subject of the charges all took place on the same day, 14 April 1998, and were committed with a co-offender, Christopher Capewell. The applicant obtained a motor vehicle which was stolen, which the offenders drove to a tobacconist's store in Dulwich Hill, which they broke and entered. They were in the process of removing property from the premises when apprehended by police. They resisted police attempts to arrest them, struggled with police, and the applicant escaped from the building and ran to the motor vehicle which was waiting outside. He drove off at high speed causing one of the police officers to jump out of the way. It was this which gave rise to the charge of assaulting the police officer. He was arrested shortly after, away from the vehicle but it also was soon located. In it were a large number of packets of cigarettes. The applicant was interviewed and initially denied his involvement but eventually entered a plea of guilty which her Honour accepted was entered at the earliest reasonable opportunity. In sentencing, her Honour took into account the four months pre-sentence custody, giving a total sentence of five years and four months made up of a minimum term of three years four months with an additional term of two years. In addition, her Honour took into account the applicant's very lengthy criminal history, which it is unnecessary here to detail.

5    The applicant gave evidence in the sentencing proceedings. He had become addicted to heroin at about the age of twenty-seven and it was in an attempt to secure funds to purchase heroin that he committed these offences as well as most of the others on his record. He also gave evidence of the assistance he was providing to his mother, with whom he lived. A sister gave evidence of the attempts to rid himself of his heroin habit, as did an employer give evidence of his industry and general honesty. The co-offender Capewell was sentenced by Viney DCJ on 31 March 1999 after the applicant was sentenced by Morgan DCJ. Viney DCJ sentenced him to a minimum term of eighteen months with an additional term of two years. Unlike the sentence imposed on the applicant, the sentence was backdated to take into account the time which Capewell had spent in pre-sentence custody, which is a period of fifteen days.

6    Two grounds of appeal were argued on behalf of the applicant. The first raised questions of parity between himself and Capewell, although it was acknowledged that there were features which warranted some disparity. The argument was that they did not justify the extent of disparity that in fact resulted, when the applicant's pre-sentence custody was taken into account, in the minimum term imposed on him being more than twice that imposed on Capewell. There are a series of features which the Crown says warranted and justified some disparity.

7    Important among those are that Capewell faced fewer charges and had a less extensive criminal history than the applicant. Further, the applicant, unlike Capewell, was on parole at the time of these offences. Capewell was not charged with the theft of the motor vehicle and he was not charged with the assault on the police officer. These, considering the overall criminality involved, are important matters.

8    Further there was a distinction to be drawn between the two in relation to their criminal records, although Capewell also had previous convictions for the same kind of offences. Viney DCJ took into account medical evidence concerning Capewell and he took into account the early plea of guilty.

9    Another important matter concerned the different views taken of the two judges towards the offenders. I will come to this in relation to the second aspect of the applicant's application. It is sufficient here to note that Viney DCJ accepted Capewell was making some progress towards rehabilitation. This can be contrasted with the view taken by Morgan DCJ, a matter which gave rise to all of the specific matters argued on behalf of the applicant that is, that Morgan DCJ erred in giving insufficient weight to his rehabilitation. He had commenced on a methadone programme and in evidence he expressed determination to remain free of heroin. His sister and his employer both gave evidence of employment and the applicant's commitment to rehabilitation. Morgan DCJ was somewhat sceptical of the applicant's claimed achievement and, in view of his history, in my view she was justified in being sceptical. In any event, that was a finding of fact that was open to her and creates another point of distinction between the two offenders.

10    I should add that Viney DCJ, having sentenced Capewell later than Morgan DCJ sentenced the applicant, was well aware of the sentence that had been imposed on the applicant. He referred expressly to the sentences imposed on the applicant and made a considered decision to impose a significantly lower penalty on Capewell.

11    In my opinion, no error has been shown in Morgan DCJ's approach and it has not been shown that the difference between the sentences imposed on the two offenders was not justified by the different circumstances. Accordingly, I would grant leave to appeal but dismiss the appeal.

12    BARR J: I agree.

13    SIMPSON J: The order of the Court will be as I have proposed.
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