Regina v Maloukis
[2002] NSWCCA 155
•30 April 2002
CITATION: Regina v Maloukis [2002] NSWCCA 155 FILE NUMBER(S): CCA 60121 of 2002 HEARING DATE(S): 30 April 2002 JUDGMENT DATE:
30 April 2002PARTIES :
REGINAv
WILLIAM STEVEN MALOUKISJUDGMENT OF: Hodgson JA at 30 and 32; Levine J at 1; Simpson J at 31
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 01/11/0156 LOWER COURT JUDICIAL
OFFICER :Shillington DCJ
COUNSEL : L M B Lamprati
H Dhanji
(Crown)
(Respondent)SOLICITORS: S E O'Connor
D J Humphreys
(Crown)
(Respondent)LEGISLATION CITED: Crimes Act 1900 CASES CITED: Pearce v The Queen (1998) 194 CLR 610
Reg v Camilleri NSWCCA 8 February 1990
Reg v Dodd (1991) 57 A Crim R 349
Reg v Edwards (1996) 90 A Crim R 510
Reg v Fahda [1999] NSWCCA 267
Reg v Ranse (unreported NSWCCA 8 August 1994)
Reg v Rushby (1977) 1 NSWLR 594
Reg v Scognamiglio (1991) 56 A Crim R 81DECISION: See paragraphs 27, 28 & 29
- 4 -
60121 of 2002
TUESDAY 30 APRIL 2002HODGSON JA
LEVINE J
SIMPSON J
REGINA v MALOUKIS William Steven
1 LEVINE J: The Crown appeals against what it asserts to be the inadequacy of sentences imposed upon the respondent by his Honour Judge Shillington in the District Court on 14 February 2002.
2 The respondent had pleaded guilty on 27 April 2001 to five counts in an indictment. The first count was for robbery (s 94 of the Crimes Act, 1900) for which a maximum penalty of fourteen years is provided, and counts 2-5 were for aggravated robbery under s 95(1) for which a maximum penalty of 20 years is provided.
3 The respondent was sentenced on the second count, taking into account eleven offences in a Form 1, to imprisonment for four years with a non-parole period of two years, special circumstances having been found. In respect of each of the other counts, his Honour imposed a fixed term of two years. All sentences were ordered to date from 23 May 2000 resulting in the respondent presently being eligible for release to parole on 22 May this year.
4 The circumstances of aggravation in each of counts 2-5 was the use of corporal violence upon the victim. The Form 1 offences involved aggravated robbery, robbery, stealing from the person, and a goods in custody offence. With the exception of the goods in custody offence on Form 1, all the offences involved what is called bag-snatching. With respect to the aggravated offences in general terms, the violence to the victims occurred in taking the bag from them, some of whom were pulled to the ground and injured.
5 The offences charged in the indictment were committed during the period 10 December 1999 and 20 May 2000. They took place in car parks of shopping centres. Typically the victims, all of whom were women, were walking in a car park and the respondent, driving a car, would drive close to the victim, grab the bag and drive away. In the case of some of the victims the bag was quickly snatched, but in others, the victim held on to the bag and was thrown to the ground as the respondent drove off. Some of the victims were injured as a result. Some of them were elderly.
6 The victim in respect of count 2 in the indictment, was aged 75 years. The victim in respect of count 5, was age 74 years. In the ninth matter in Form 1, the victim was 68 years, otherwise the victims were in their 40's and 50's. The victims of the aggravated robbery offences suffered injuries consistent with being thrown to the ground such as bruises, cuts and grazes, and muscle strain.
7 On 5 April 2000 the respondent had been sentenced in Waverley Court in respect of assault charges to periodic detention for nine months to commence on 14 April 2000. Thus it can be seen that most of the offences were committed whilst the respondent was subject to those orders. I add that Form 1 offences, excluding the goods in custody matter, ranged in date from 24 February 2000 to 20 May 2000.
8 The respondent, born on 23 July 1969, has an extraordinarily extensive criminal record dating back to a first appearance in the Children's Court in September 1981.
9 In his remarks on sentence his Honour outlined the offences encompassed by the counts in the indictment and the matters in Form 1. His Honour gave a general description of the facts in each case conformable with that which I have outlined. He noted particularly the offence regarding the 75 year old woman and stated that all of the offences were serious breaches of the peace and were "so numerous that obviously the court must take a grave view of the offences themselves”.
10 He gave the prisoner the benefit of having entered his plea at a reasonable time and the utilitarian value of it. It is to be understood that the matters themselves came to light as a result of the respondent's premises being investigated and property of the victims being found. His Honour noted the age of the prisoner at the time of sentence, 34, the sentences previously ordered, and his Honour accepted a submission, as I have said, that the sentences he was to impose would be backdated to the date on which the respondent went into custody, namely 23 May 2000.
11 His Honour had the benefit of a psychological report from Ms Kush, a presentence report disclosing, as his Honour noted, the extraordinarily difficult subjective circumstances of the respondent's upbringing in relation to his father, and the circumstances attending the respondent's mother and sister. He had reports from Mr Crawford in relation to the mother and the sister and significantly said he did take into account their need for assistance which had previously been given by the respondent. His Honour accepted a statement by the respondent expressing regret for his conduct, and accepted that that attitude was reflected in the pleas of guilty.
12 His Honour noted truancy, addiction to amphetamines and heroin, and the then state of the respondent's methadone treatment. His Honour had the benefit of the report from Doctor Lucas who diagnosed that the respondent was suffering from a generalised anxiety disorder; that the respondent had difficulty handling his custodial situation and had been the subject of physical assault; that at the time of sentence, was in strict custody and had suffered a broken jaw. His Honour said he took these matters into account. His Honour found special circumstances being the respondent's mental condition, as his Honour described it, the need for rehabilitation and the difficulty he would clearly face in custody. His Honour thereupon fixed the sentences to which I have referred.
13 A sentence imposed, or a series of sentences imposed, must reflect the objective seriousness of the crime or crimes, and subjective considerations must be taken into account though not permitted to outweigh the objective factors present: Reg v Rushby (1977) 1 NSWLR 594; Reg v Dodd (1991) 57 A Crim R 349 at 354; Reg v Camilleri, unreported, NSWCCA 8 February 1990. It has been submitted that deterrence is a very important aspect of sentencing, one of the main purposes of punishment being to protect the public from the commission of crimes by making it clear to offenders that if they yield to these impulses, they will meet with severe punishment: Reg v Radich (1954) NZLR 8; Rushby (supra).
14 At this point I note the evidence before the learned sentencing judge as to the mental state, as he described it, that led to the diagnosis to which I have referred. I make the following observations. First, that that evidence did not establish any matter that would, vis-a-vis the respondent, derogate from the application of the principle of general deterrence in my view (Reg v Scognamiglio (1991) 56 A Crim R 81; Reg v Fahda [1999] NSWCCA 267). Secondly, his Honour could be understood otherwise as giving the benefit of his finding, dehors the general deterrence aspect, in favour of the respondent in any event.
15 It is not inappropriate to refer to two paragraphs of the judgment of Gleeson CJ in Reg v Ranse (unreported,NSWCCA 8 August 1994) to which reference has otherwise been made:
- “One of the primary purposes of the system of criminal justice is to keep the peace. In this connection the idea of peace embraces the freedom of ordinary citizens to walk the streets and to go about their daily affairs without the fear of physical violence. It also embraces respect for the property of others.
- Offences of the kind committed by the present respondent are not trivial instances of disrespect for private property. They are serious breaches of the peace. They are directed attacks upon the security of persons and property which the law exists to protect.”
16 At this point I would interpolate that whilst the submissions in relation to the facts and ultimate sentencing structure in Ranse were of interest, I am not persuaded that they are of assistance when one is focused on the view to which I must come of the particular circumstances which has led the Crown to appeal in this instance.
17 The objective seriousness of the respondent's offences was high. The crimes were over an extensive period of time and as the Crown has submitted in writing, they were planned and persisted in. It involved violence with the infliction of injury upon victims, some of whom were elderly.
18 I have referred to the respondent's bad criminal record which includes convictions for stealing and an offence of this kind in 1984. As has been remarked, most of the present offences were committed whilst the respondent was subject to a recognizance, a particularly aggravating component with which the learned sentencing judge had to deal. There was nothing about the circumstances of the criminal acts when taken with the respondent's prior criminal record which called for that degree of leniency which, in my view, has been reflected in the sentences imposed.
19 In Pearce v The Queen (1998) 194 CLR 610 at 624 it is stated that in sentencing for more than one offence the sentencing judge must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well of course, as questions of totality.
20 I have referred to the two sentences imposed by which the individual sentences imposed for counts 1, 3, 4 and 5 were each of two years, and to the four-year sentence in respect of count 2 which embraced the Form 1 matters. It is submitted that the sentence imposed in respect of count 2, four years with a two year non-parole period, included the criminality involved in the eleven other offences on Form 1, each of which was an offence committed on a separate occasion, so that in a real sense, each offence constituted a cumulative criminality.
21 The non-parole period of a sentence is the component which most reflects the element of punishment. It was initially submitted that it was difficult to see how an identical wholly concurrent period of custody for each count in the indictment amounted to appropriate punishment for the totality of the criminality involved. That, in the end, did not quite reflect, as I understood it, the proposition to which the Crown was approaching. I will return to it in a moment.
22 His Honour took into account matters of hardship to the respondent's sister and mother arising from the respondent's incarceration. It is difficult to determine to what extent his Honour placed weight on this. It is submitted for the Crown that the relevant circumstances would need to be exceptional: Reg v Edwards (1996) 90 A Crim R 510 at 516-7. Of course the reality is that hardship to family is an inevitable consequence of custody. The failure on the part of his Honour to find exceptional circumstances in accordance with authority or otherwise to explain why or how he took into account his finding in relation to matters of hardship, constitutes, in my view, the first of two errors.
23 In so far as otherwise the matter of hardship was a relevant consideration vis-a-vis the respondent himself, his Honour does appear to have taken it into account.
24 The sentences imposed by his Honour in the end did not reflect properly the objective seriousness of the conduct. The conclusion to which I have come is that his Honour appears to have accorded too much weight to subjective factors when allocating sentences to the individual offences. Sentences in accordance with Pearce did not thereafter give consideration to the second component of the Pearce principle. His Honour does not appear to have considered the circumstances which, in my view, called for the consideration of the question of concurrence, cumulation and the concept of totality. Therein lies the second error. Thus this Court must intervene.
25 In these circumstances the respondent has the benefit of the principle of double jeopardy.
26 Evidence has been received in the form of an affidavit sworn on 23 April by the respondent in relation to his custodial history; his plans to assist his mother and sister; his having been bashed. An affidavit by the respondent's mother sworn 24 April has been received as to her circumstances. An affidavit of the respondent's solicitor sworn 23 April has been received which attaches health and other custodial records, all of which point to, in a general way, the subjective matters attending the respondent's custody, his intentions upon release, and other matters of the kind which cannot in any way be said to have been ignored by his Honour and which cannot be ignored by this Court. I am prepared to give weight on the one hand to those matters taking the principle of double jeopardy into account, and on the other, to give weight to the objective seriousness of the criminality involved and the requirement of general deterrence. Having considered sentences appropriate to each count in the indictment, I have come to the view that in the end, the totality of the criminality can be reflected in cumulation with one variation of the sentences in fact imposed.
27 I will add that in the end result, even the sentence I would propose is less than, in my view, the sentence that should have been imposed absent error at first instance. For the above reasons I propose that the Crown appeal be allowed in respect of the sentence on count 2.
28 The sentence for counts 1, 3, 4 and 5 will not be changed. The sentence in respect of count 2 will be changed. It is to be made cumulative to the concurrent two year sentences in respect of the other counts and thus there will be a four year sentence to commence on 23 May 2002 and to expire on 22 May 2006. In respect of that sentence there will be a non-parole period of 18 months to commence on 23 May 2002 and expire on 22 November 2004 on which date the respondent will be eligible for release to parole. No non-parole period has, of course, been fixed in relation to the sentences in place in respect of counts 1, 3, 4 and 5.
29 The recommendation of the learned sentencing judge as to psychiatric treatment is confirmed.
30 HODGSON JA: I agree.
31 SIMPSON J: I also agree.
32 HODGSON JA: The order of the court is as proposed by Levine J.
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