Makouk v R

Court of Criminal Appeal (NSW)|2023-05-10|Before: Beech-Jones CJ, Adamson JA, Price J, Jones CJ

Solicitors: The Shopfront Youth Legal Centre (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2021/297033; 2021/104962; 2021/95725; 2021/96611 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: [2022] NSWDC 170 Date of Decision: 12 May 2022 Before: Scotting DCJ File Number(s): 2021/297033; 2021/104962; 2021/95725; 2021/96611

JUDGMENT

BEECH-JONES CJ at CL: This is an application for leave to appeal from the imposition of an aggregate sentence of 6 years imprisonment with a non-parole period of 3 years and 6 months. The sentence was largely imposed for the commission of three street robberies committed over three days, two of which involved the brandishing of a pistol and the other involved the brandishing of a knife. The applicant for leave to appeal, Kaylan Makouk, was just under 20 years of age at the time he committed the subject offences. He had no prior convictions, a very deprived upbringing and good prospects of rehabilitation. He contends that the sentence imposed was manifestly excessive. Notwithstanding the strength of his subjective case, I am not satisfied that it was. My reasons for that conclusion are as follows.

The Sentences

On 5 May 2022, the applicant appeared for sentence before his Honour Judge Scotting (the "sentencing judge"). He adhered to the pleas of guilty he entered in the New South Wales Local Court for two offences of robbery while armed with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900 (NSW) and one offence of robbery while armed with an offensive weapon contrary to s 97(1) of the Crimes Act. Associated with each offence was an offence listed in a notice filed by the prosecutor under s 32(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (a "Form 1" and the "Sentencing Act" respectively). The applicant was also sentenced for two related firearms offences included on a certificate filed under s 166 of the Criminal Procedure Act 1986 (NSW), each of which was accompanied by an offence on a Form 1.
On 12 May 2022, the applicant was sentenced to an aggregate term of imprisonment for 6 years with a non-parole period of 3 years and 6 months commencing on 12 June 2021. Subject to any intervention by this Court, the applicant will be first eligible for release on parole on 12 December 2024.
The following table sets out the particular offences to which the applicant pleaded guilty or requested be taken into account on a Form 1, the dates and victims of each offence, the maximum penalty for each offence, and the sentence indicated for that offence by his Honour pursuant to s 53A(2)(b) of the Sentencing Act: Count Offence Date/Victim Maximum Penalty (Discounted) indicative sentence Count 1 Robbery armed with dangerous weapon 4 April 2021 - Timur Smagulov 25 years imprisonment 4 years and 6 months S 97(2) Crimes Act Form 1 taken into account on Count 1 Robbery armed with dangerous weapon 4 April 2021 - Huihung Fang 25 years imprisonment N/A S 97(2) Crimes Act Count 2 Robbery armed with offensive weapon 5 April 2021 - Xiaozhou Liu 20 years imprisonment 3 years and 9 months S 97(1) Crimes Act Form 1 taken into account on Count 2 Resist officer in execution of duty 1 October 2021 5 years imprisonment N/A S 58 Crimes Act Count 3 Robbery armed with dangerous weapon 6 April 2021 - Henny Hildas 25 years imprisonment 5 years S 97(2) Crimes Act Form 1 take into account on Count 3 Robbery armed with dangerous weapon 6 April 2021 - Josh Craig 25 years imprisonment N/A S 97(2) Crimes Act S 166 certificate offence Possession unauthorised pistol 7 April 2021 14 years imprisonment but maximum 2 years as under s 166 of the Criminal Procedure Act 1986 9 months with a non-parole period of 6 months S 7(1) Firearms Act 1996 (NSW) Form 1 taken into account on s 166 certificate offence Possess unauthorised pistol 7 April 2021 14 years imprisonment but maximum 2 years as under s 166 of the Criminal Procedure Act N/A S 7(1) Firearms Act S 166 certificate offence Possess unregistered firearm 7 April 2021 14 years imprisonment but maximum 2 years as under s 166 of the Criminal Procedure Act 6 months S 36(1) Firearms Act Form 1 taken into account on s 166 certificate offence Possess unregistered firearm 7 April 2021 14 years imprisonment but maximum 2 years as under s 166 of the Criminal Procedure Act N/A S 36(1) Firearms Act

None of the offences carried a standard non-parole period.

The Offences

Placed before the sentencing judge was an agreed statement of facts which was summarised by his Honour in the sentencing judgment.
The applicant committed the three robberies on successive days, being 4, 5 and 6 April 2021. At around 1.15am on 4 April 2021 the applicant, who was wearing a "hoodie" and black surgical mask, pointed a gun at the two victims who were walking down a street in Glebe. The victims complied with the applicant's demands and handed over valuable personal items including a leather cardholder, a watch and an "Apple" brand electronic watch. The robbery of one of the victims is the offence under s 97(2) of the Crimes Act listed as Count 1 in the above table and the robbery of the other victim was included on the Form 1 associated with that offence.
The second robbery, being the offence under s 97(1) of the Crimes Act listed as Count 2 in the above table, occurred late in the afternoon of 5 April 2021. The victim was walking in Ultimo when he was grabbed from behind around the neck by the applicant. The applicant, who was wearing a balaclava, held a "red box cutter" with a 10cm blade in front of the victim's stomach and demanded the victim's bag and phone. The applicant stole the victim's wallet, around $415 in various currencies, a bank card which he later attempted to use, and some identity cards.
The third robbery occurred late in the evening in Ultimo on 6 April 2021 when the applicant and his co-offender ran up and pointed guns at the victims demanding they hand over their wallets, phones and other property. The victims complied. The property that was handed over included expensive electronic equipment. The robbery of one of the victims is the second offence under s 97(2) of the Crimes Act listed as Count 3 in the above table and the robbery of the other victim was included on the Form 1 associated with that offence.
The applicant was arrested in the early hours of 7 April 2021 in possession of a debit card owned by one of the victims of the third robbery. A search of the hotel room where the applicant lived revealed two handguns and a balaclava. The handguns were battery operated air pistols that fired gel or water beads. Both were unregistered firearms. The applicant's possession of those firearms was the basis for the firearms offences included on the s 166 certificate, being the last four offences listed in the above table.
The applicant was interviewed and denied involvement in the robberies. He was initially refused bail but was released after being granted bail in the Supreme Court on 18 August 2021. He did not comply with his bail conditions. He was arrested at his aunt's home on 1 October 2021 after a violent struggle with police, which formed the basis for the charge under s 58 of the Crimes Act included on a Form 1 as set out in the above table.

The Sentencing Judgment

The sentencing judge published reasons for the sentence imposed (R v Makouk [2022] NSWDC 170; "Makouk"). The clarity and comprehensive nature of those reasons is such that they should be read together with this judgment. His Honour's critical findings can be summarised as follows.
First, based on a substantial body of evidence, which included evidence from the applicant, a report from a psychiatrist and separate letters from a caseworker and psychologist, the sentencing judge outlined the applicant's subjective case with care. In short, the applicant was removed from his mother's care when he was about six months old. He lived with his father and his brother for two years but they were then abandoned by their father in a park. They were placed in the care of their grandfather by the Department of Community Services. However, the applicant also lived with his aunt and cousins for a time, where he claimed he was sexually abused over a period of one to two weeks when he was seven to eight years old. The applicant was subjected to significant physical and emotional abuse while in the care of his grandfather and stepfather (Makouk at [25]).
The applicant's mother committed suicide when he was 11 years old (Makouk at [26]). The applicant's schooling was disrupted and he experienced learning difficulties. When he was about 12 years old, the applicant witnessed an incident in which a younger boy from his primary school was run over and killed on the way to school. The psychiatrist recorded that the applicant was significantly traumatised by this incident. The applicant left high school at the end of Year 10. He became the primary carer for his grandmother, who had severe emphysema and died in September 2020 (Makouk at [27]−[28]).
The applicant had a history of drug abuse and alcoholism dating back from when he was 11 or 12 years old. The applicant had been drinking heavily, taking Xanax and smoking cannabis in the week leading up to the offence (Makouk at [30]). He was diagnosed by the psychiatrist as suffering from an alcohol and substance use disorder and post-traumatic stress disorder ("PTSD") (Makouk at [34]).
His Honour accepted that as a result of these matters, the applicant's moral culpability for these offences was reduced (Makouk at [70], citing Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37). His Honour recognised that the applicant's PTSD and substance use disorder were "a result of his deprived upbringing" and accepted there was "a causal relationship between his substance use disorder and his offending conduct" (Makouk at [74]).
Second, his Honour accepted the applicant's evidence that, in about 2019, the applicant entered into a relationship that became highly dysfunctional by virtue of mental health problems experienced by both partners (Makouk at [29] and [60]). The applicant and his partner separated on the morning of the first robbery on 4 April 2021 (Makouk at [29]). His Honour noted that the applicant said that his partner was in a manic state and tried to stab him before he left her and had consumed drugs before committing the offences (Makouk at [61]).
Third, his Honour addressed the various mitigating and aggravating factors listed in s 21A of the Sentencing Act (at [77]−[87]). His Honour accepted that the applicant did not have a record of previous convictions (s 21A(3)(e)), was a person of good character (s 21A(3)(f)), had good prospects of rehabilitation (s 21A(3)(h)) and had demonstrated remorse (s 21(A)(3)(i)) (Makouk at [79]−[82]). His Honour noted that the first and second robberies on 4−5 April 2021 involved the actual use of a firearm that was pointed towards the victims (s 21A(2)(c)) and that the third robbery on 6 April 2021 was committed in company (s 21A(2)(e)) (Makouk at [77]−[78]).
Fourth, his Honour addressed the various relevant sentencing factors. His Honour found that, having regard to the applicant's reduced moral culpability, "matters such as deterrence, denunciation and retribution carr[ied] less weight" and that "further time in custody [wa]s likely to expose him to further trauma and cause further decline in his mental health" (Makouk at [76]). His Honour also accepted that the need for specific deterrence was "tempered by reference to the offender's prospects of rehabilitation and his insight into his need for treatment and support to reintegrate into the community" (Makouk at [76]).
Fifth, as the applicant pleaded guilty in the Local Court, the sentencing judge allowed a discount of 25% off his sentence (Sentencing Act, s 25D(2)(a)). His Honour noted the need to consider totality especially given the offences were committed over a three-day period "at a time of crisis and excessive drug use" (Makouk at [86]). His Honour made a finding of special circumstances for the purposes of s 44(2A) of the Sentencing Act. The ratio between the non-parole period and the total sentence imposed by his Honour is 60%.
Lastly, I note that his Honour addressed the guideline judgment of R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 ("Henry") at [69] as follows: "The Henry guideline is applicable in these sentence proceedings: R v Henry (1999) 46 NSWLR 346. The guidelines provide that where the offence is characterised by certain features, the head sentence imposed should fall between four to five years imprisonment. It should be noted that the s 97(2) robbery offences are more serious than the types of offences considered in Henry, but also that the Henry guideline related to late pleas of guilty where the appropriate discount was in the order of 10%. The guideline judgment is not prescriptive, but rather operates as a check or a sounding board for the imposition of an appropriate penalty: Legge v The Queen [2007] NSWCCA 244 at [40] and [48]-[59]."

Was the sentence imposed manifestly excessive?

The sole ground of appeal is that the sentence imposed was manifestly excessive.
The principles applicable to this ground of appeal as set out by various High Court cases were summarised by RA Hulme J (with Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] as follows: "• Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. • Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. • It is not to the point that this Court might have exercised the sentencing discretion differently. • There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. • It is for the applicant to establish that the sentence was unreasonable or plainly unjust." (emphasis added)
In addition, it should be noted that where an aggregate sentence is imposed for multiple offences, it is that sentence which is the subject of the appeal, not the indicative sentences (JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [40] per RA Hulme J, with Hoeben CJ at CL and Adamson J agreeing). However, the "potentials for accumulation" of various indicative sentences can still be examined to determine whether the "aggregate sentence represents a sound exercise of sentencing discretion" (R v Brown [2012] NSWCCA 199 at [35] per Grove AJ, with MacFarlan JA and McCallum J agreeing).
The applicant's submissions in support of this ground of appeal did not just accept the sentencing judge's findings about the applicant, they positively embraced them. Thus, it was submitted that his Honour's findings demonstrated an exceptionally strong subjective case of a remorseful young offender with no prior convictions, good prospects of rehabilitation, a background of significant disadvantage and reduced moral culpability.
The sentencing judge's analysis of Henry is noted above (at [21]). Henry concerned offences under s 97(1) of the Crimes Act. The "certain features" to which his Honour referred were identified in Henry (at [162]) as: "(i) Young offender with no or little criminal history; (ii) [Use of] [w]eapon like a knife, capable of inflicting serious injury; (iii) Limited degree planning; (iv) Limited, if any, actual violence but a threat thereof; (v) Victim in a vulnerable position…; (vi) Small amount taken; (vii) Plea of guilty, the significance of which is limited by a strong Crown case."
The applicant's two offences under s 97(2) of the Crimes Act have some features in common with the type of case envisaged by Henry, such as the presence of vulnerable victims, but they are far more serious given they involved the use of a firearm and a higher maximum penalty (25 years in comparison to 20 years). The applicant's offence under s 97(1) of the Crimes Act was also more serious than the type of case envisaged by Henry given the violence that was used (namely, placing an arm around the victim's neck while brandishing a knife at their stomach). Importantly, each of the applicant's offences had a serious offence attached on a Form 1, a matter that is not addressed by the guideline stated in Henry.
The Henry guideline contemplated an offender with a reasonably strong subjective case, though I accept that this applicant's subjective case was especially strong. Accepting for present purposes the sentencing judge's conclusion that the form of guilty plea contemplated by the type of case discussed in Henry was a 10% discount, then the undiscounted range for such offences stated in Henry "fall[s] between four years [and 5 months] and five years [and seven months]" (Henry at [165]; see R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [161]). As already noted, the applicant received a 25% discount for his pleas of guilty. The undiscounted indicative sentence for the applicant's offence under s 97(1) was 5 years. The undiscounted indicative sentences for the applicant's two offences under s 97(2) were 6 years and 6 years and 8 months.
It follows from Markarian v R (2005) 228 CLR 357; [2005] HCA 25 that sentences for offences against s 97(1) (or s 97(2)) are not to be fixed by starting with the sentence range nominated in Henry then cross-checking the features of an instance case with those contemplated by Henry (at [26] above) and adjusting the range accordingly. Nevertheless, it suffices to state that nothing in Henry provides any support for the suggestion that the indicative sentences in this case are manifestly excessive (much less the aggregate sentence).
The applicant's submissions also referred to a number of decisions of this Court that have considered (roughly) comparable robbery cases involving a young offender with little or no criminal history, an early plea of guilty and a background of social disadvantage.
In Faleafga v R [2016] NSWCCA 178, the offender committed an offence under s 97(1) in which he broke through a locked glass sliding door of a service station and threatened the attendant with a spray can and lighter. The offender was sentenced at first instance to 4 years imprisonment with a non-parole period of 2 years and 3 months. On appeal, he was resentenced to 3 years and 2 months imprisonment with a non-parole period of 1 year and 8 months. That sentence took into account a 25% discount the offender received on account of his early plea of guilty. The circumstances of that offence appear to be roughly comparable to Count 2, although there was no Form 1 offence attached unlike this case.
The applicant also relied on the decision in Gardiner v R [2018] NSWCCA 27 ("Gardiner") in which the offender pleaded guilty to an offence under s 97(1) where he robbed a service station in company. The offender held a golf club in a threatening manner and the co-offender held a small knife. The offender was originally sentenced to 3 years imprisonment but was resentenced on appeal to a total sentence of 28 months imprisonment with a non-parole period of 14 months. However, that sentence reflected the application of parity. The Court expressly disclaimed any suggestion that the original sentence of 3 years was manifestly excessive (Gardiner at [62] per Simpson JA, with Fullerton and McCallum JJ agreeing). The applicant's offence under s 97(1) was marginally more serious than the offending in Gardiner and also had a Form 1 offence attached.
The applicant also relied on Kocyigit v R [2018] NSWCCA 279 ("Kocyigit") and Nasrallah v R [2021] NSWCCA 207 ("Nasrallah") in which the offenders were sentenced at first instance to 2 years and 7 months imprisonment with a non-parole period of 1 year and 7 months (Kocyigit) and 4 years and 1 month imprisonment with a non-parole period of 2 years and 9 months (Nasrallah). Kocyigit concerned an offence of robbery inflicting actual bodily harm contrary to s 95(1) of the Crimes Act in circumstances that were comparable to Count 2. Nasrallah concerned an offence under s 97(1) of the Crimes Act. However, in Kocyigit, a contention that the sentence was manifestly excessive was rejected in terms that suggested the sentence was clearly well within the range (at [36]−[37]). In Nasrallah, a majority of this Court dismissed the appeal but identified a failure by the sentencing judge to backdate the sentence imposed by four days (at [29] per Bell P, [55] per Price J, contra Hamill J at [58]). No question arose as to the appropriate range of the sentence.
There are significant limitations on the use of supposedly comparable cases in establishing that a particular sentence was manifestly excessive (see Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [53]-[55]) and that is especially so with a such limited cohort as that relied on by the applicant. At best, the cases provide some support for the contention that in the circumstances, the indicative sentence for the offence under s 97(1) was relatively stern given the applicant's strong subjective case. The indicative sentences for the offences under s 97(2) might also be so characterised, although the use of what appeared to the victims to be functioning pistols is a very significant escalation of offending compared to the use of a knife in the offence under s 97(1).
As noted, ultimately what must be shown is that the aggregate sentence was manifestly excessive. The fact that the robbery offences all occurred within a short time frame warranted a significant degree of notional concurrency in the sentences on account of totality. The same applies to the firearms offences included in the s 166 certificate. Nevertheless, even accounting for the applicant's strong subjective case, I am not satisfied that an aggregate sentence of 6 years imprisonment for the carrying out of multiple robberies on multiple victims, which included the use of a firearm on two occasions and a knife on the other, was manifestly excessive. That conclusion is only reinforced when consideration is given to the non-parole period of 3 years and 6 months that was imposed on account of his Honour finding special circumstances for the purposes of s 44(2A) of the Sentencing Act.
I would reject the proposed ground of appeal.

Proposed Orders

I propose the following orders: (1) The applicant be granted leave to appeal; (2) The appeal be dismissed.
ADAMSON JA: I agree with Beech-Jones CJ at CL.
PRICE J: I agree with Beech-Jones CJ at CL.

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