R v Kyal SUKKAR

District Court of NSW|2010-04-15

DECISION: Overall sentence of 6 and 1/2 years imprisonment with a non-parole period of 3 years.

CATCHWORDS: CRIMINAL LAW - sentence - specially aggravated detain for advantage - armed robbery - aggravated break, enter and steal - Forms 1 taken into account - offences committed in company - victim vulnerable person - pizza deliverer - - use of weapon - whether or not gratuitous cruelty involved - not directly involved in physical assaults - drug habits - young man - negligible criminal record - no drug use since being in custody - guideline judgment - plea of guilty at earliest opportunity - subject of assaults - stable and supportive home environment

LEGISLATION CITED: Crimes Act 1900 s 86(1)(b) s 86(3), s 97(1), s 112(2), s 154F, s 195(1)(a), s 195(1)(b) Crimes (Sentencing Procedure) Act 1999 s 21A

TEXTS CITED: R v Henry (1999) 26 NSWLR 346 R v McCullough [2009] NSWCCA 94

PARTIES: Regina Kyal Sukkar

SOLICITORS: Ms Rowbotham (NSW Office of Director of Public Prosecutions)

Kyal Sukkar is a young man who is still only nineteen. He comes from a good family. However, he had real difficulty in his adolescent and teenage years. He effectively went off the rails for some time. He dropped out of school. He became involved in drug taking and mixed with the wrong company.

Despite having a negligible criminal record he embarked on a series of very serious crimes. One of these crimes is so serious that it carries a maximum of twenty five years imprisonment. Another is so serious that Parliament has fixed a standard non-parole period of five years imprisonment to the crime.

On the other hand he is a young man who has accepted the impact which being in custody over the last year or so has had on him. He has changed his habits and is clearly determined to put behind him the kind of behaviour which has resulted in these offences.

I am sentencing this afternoon Kyal Sukkar for three crimes. The most serious is called specially aggravated detain for advantage. That is effectively a kidnapping in company with the kidnappers assaulting the victim. That is an offence against s 86(3) of the Crimes Act 1900 and carries with it a maximum of twenty five years imprisonment.

The second crime I am sentencing him for is an armed robbery. That is an offence against s 97(1) of the Crimes Act and Parliament has fixed twenty years as the maximum penalty to that crime.

The third offence is called aggravated break, enter and steal. That is an offence against s 112(2) of the Crimes Act. Parliament has not only fixed a maximum of twenty years imprisonment to that crime but has determined that a standard non-parole period of five years should apply to that crime.

When I am sentencing him for the specially aggravated kidnapping he has asked me to take into account under s 32 of the Crimes (Sentencing Procedure) Act 1999 two additional offences when sentencing him. They are the theft of a motor car which is an offence under s 154F of the Crimes Act and the intentional destruction of that car which is an offence against s 195(1)(b) of the Crimes Act. When I sentence him in due course for the specially aggravated kidnapping I will take into account those two offences and I have signed the form acknowledging that.

When I come to sentence him for the aggravated break, enter and steal I am asked to take into account two sentences again under s 32 of the Crimes (Sentencing Procedure) Act. One is the destruction of property, once again an offence under s 195 of the Crimes Act, this time under subs (1)(a). The other is detaining a person or kidnapping a person which is an offence against s 86(1)(b) of the Crimes Act. In due course when I sentence him for the aggravated break, enter and steal I will take into account those two offences and I have signed the appropriate form accordingly.

It is always important for a judge or magistrate when they are sentencing someone to have clearly at the forefront of their mind how serious the offence is. It is important, the higher courts have said, that sentencers not be distracted by a strong personal case or let a strong personal case, perhaps it is better expressed, overwhelm the seriousness of the crime which the sentencer is imposing a penalty for. That is why it is important at the commencement of the remarks on sentence to set out just what happened which brought about Mr Sukkar being charged with these offences.

Two of the offences, the specially aggravated kidnapping and the armed robbery occurred on the same occasion with the same victim. So too were the two offences which I take into account in sentencing Mr Sukkar for the specially aggravated kidnapping.

What happened which resulted in these charges is this. Mr Sukkar was with two others. On Australia Day last year in the evening, Monday, 26 January 2009, they decided to order some pizzas. Between ordering the pizzas and their delivery they decided to rob the pizza delivery man. I am satisfied from evidence given by Mr Sukkar when he was called by Mr Heathcote of counsel who appeared for him that the decision to rob the pizza man was made some time between ordering the pizzas and his arrival.

They ordered the pizzas to be delivered to Mount Pritchard. The pizza man turned up and was confronted by the three men. Mr Sukkar then produced what appeared to be a black handgun and pointed it at the victim's face. In fact, it was not a real gun but a toy gun. Nevertheless I am sure that the pizza delivery man did not appreciate that at the time.

Pointing the gun to the pizza delivery man's face Mr Sukkar said "Give me your car key, pizza, and all the cash you have". The victim handed over his car keys and thirty five dollars in cash. Not satisfied with what they had received, Mr Sukkar then said to the victim "Get in the back of the car". All four men, the three criminals and the pizza delivery man, got into the car.

Mr Sukkar told the victim to take off his glasses and not to look at him. He said he did not want to because he could be described to the police. In order to reinforce this, with the pizza man in the car with the three others Mr Sukkar decided to punch the pizza delivery man in the face. He then pushed the victim's face away from him. He then made him pull his shirt over his face so that he could not see who was in the car.

They searched his wallet and took some ATM cards. They drove to an ATM, avoiding a service station because Mr Sukkar said that there would be cameras at the service station, and directed the victim to withdraw money from his account, some $200 from one and about $160 from the other.

They knew that the man was married because he made reference to one of the cards belonging to his wife. Not satisfied, at this stage they all got back into the car including the pizza delivery man who was told to get back into the car. He did not know where he was. He heard mention of Minto. They went to a place and picked up a fourth man.

Whilst the others were in collecting the fourth man, once again Mr Sukkar decided to punch the pizza man in the side of his face. The pizza man was behind the wheel and was told to do the driving. Once again he was in the car for about twenty five minutes before they got to Mount Pritchard. He was then told to get out of the car and walk towards a reserve. The men followed him. He overheard them discussing breaking his legs and hands. He heard Mr Sukkar say "Don't kill him".

They arrived at a sports field. The other men, not Mr Sukkar, began to assault the victim. He was punched to the back of the head. It was so hard that he fell to the ground. He was picked up and punched in the nose. The man put his arms up to protect his head and pretended to be unconscious.

Still not satisfied, the other men, not Mr Sukkar, stabbed him in the back. The victim heard one of the men ask "Are you still alive?". They stuck a small pruning knife into his left arm. He at one stage opened his eyes and saw one of the men holding a broken glass bottle which must have been used for the stabbing which did not involve the knife.

They took the car keys from him and left. After waiting for five minutes the victim raised the alarm. He had been detained for about three and a half hours. He sustained bruising, swelling to his face, small abrasions to his left arm and lacerations to his back where he was stabbed with the bottle. The men then decided to burn the victim's car. The police found the burnt car later on. The theft of the car and its burning are the offences which I take into account at the time of sentencing him.

The armed robbery occurred at the commencement of the proceedings when the pizza delivery man was relieved of his car key and the cash when the gun, which he did not know was a replica, was being pointed into his face.

The third offence that I am sentencing him for is the aggravated break, enter and steal. This occurred on a separate occasion. It was a couple of months later on Friday, 13 March 2009. A person who lived in Mount Pritchard left their house and locked it up. It was a house which was near where Mr Sukkar lived. He, with another person, broke in through a side door and got into the garage of the house.

Once they got in there they stole a printer and a computer and a drill, a lawn mower, fishing rods and other items which were kept in the garage. They managed to damage or destroy the computer, printer and monitor. That destruction or damage I take into account in sentencing him for this offence.

The other matter which I take into account in sentencing him for that aggravated break, enter and steal is a matter with which he is charged by an indictment which charges him with detaining another man without his consent or advantage. That occurred a fortnight later on Friday, 27 March 2009. The victim was a friend of Mr Sukkar's.

Mr Sukkar went to the victim's home and produced a set of handcuffs. He put the handcuffs on the victim's hands but then refused to take them off. He put duct tape around his ankles. He was begged by the victim to remove the cuffs and to let him know what was happening but he refused. He put duct tape over the man's mouth and wrists despite the victim asking repeatedly to be freed. The man tried to escape several times but Mr Sukkar stopped him from leaving.

They sat and watched television for a while and Mr Sukkar made some phone calls. They actually went out to the backyard where Mr Sukkar went swimming in the pool and then he decided to remove the handcuffs and undo the duct tape. That offence is the other one which I take into account in sentencing him for the aggravated break, enter and steal.

Mr Sukkar, as I said, has a negligible criminal record. He has one entry in the Campbelltown Children's Court for malicious damage to property that has no impact adverse to Mr Sukkar at all on the sentence which I will in due course impose.

Mr Heathcote called his client and his client's mother. His client, Kyal Sukkar, was an impressive witness. He is a young man, it seems to me, who has clearly seen the extent of the trouble that he has got himself into and determined to change his ways. I will refer briefly to some of his evidence. When he was refused bail on being arrested on 7 April 2009 - from which date I will date the sentence - he was still eighteen. At one stage he was sent to Lithgow Correctional Centre which is a maximum security facility. He was still eighteen when he was sent there and in fact turned nineteen when he was there. He was confronted by some very serious criminals. There was no safety issue, he acknowledged, but it was a very frightening experience for him. He was asked whether he was prepared to name his co-offenders and he declined, saying that it had been made very clear to him that he and his family would be under threat if he identified them.

He acknowledged assaulting the pizza delivery man himself on two occasions. He very clearly acknowledged the remorse that he felt towards the victim of that assault including understanding the impact which the crime had on the pizza delivery man. Mr Sukkar said that he himself had been the subject not only of bullying but mugging and assaults when he was younger. He understood what it was like to be the victim of this sort of behaviour. He made it clear that the assaults which occurred in the reserve were not perpetrated by him but by his co-offenders. As both Mr Heathcote and Ms Rowbotham, who appears as prosecutor, acknowledge, he is still being sentenced in respect of those assaults because he was engaged jointly with his co-offenders but I need to take into account that so far as his role was concerned he was not directly engaged himself in the physical assaults in the reserve.

He has had a troubled adolescence, as I referred to in my opening observations. He has been to various different schools; that is because of behavioural problems and not being able to settle in. His mother who is herself a school teacher made all efforts to try to get him settled into a school which would be suitable for him. He settled for some years towards the end of his secondary education but left high school part way through Year 12 and did not complete his Higher School Certificate. He did not get a job but stayed around at home playing video games. He started using cannabis around seventeen or eighteen; he started to drink too much. He started using other drugs, more serious drugs. Most significantly he started using the drug known as ice for some months up to the time that he committed these crimes.

Understandably with his drug habits he was mixing with undesirable company. He linked up with some young men whom he had known at one of his schools who were not good company. He refused to introduce them to his mother. In these circumstances it was not surprising that there was some trouble at home. His parents were not happy with him not working and playing video games and they wondered about his drug taking. He is one of two children and has a sister who is a year younger than he is. He acknowledged also the impact which his behaviour has had on his family.

Since he has been in custody he has not, he tells me, used drugs and I accept that. The last time he used, he said, was 6 April 2009, the day before he was arrested. Not only that but he has undertaken a number of courses whilst he has been in custody. To his credit he has obtained certificates - which are referred to in exhibit 2 - in a number of areas including drug and alcohol addiction and relapse prevention and anger management, as well as some computer skills. Remaining off drugs in prison is not something to be taken for granted. It seems to be common knowledge that if an inmate is keen enough and determined enough that the inmate may be able to access illegally imported drugs in a corrections centre. Since he has been in prison his parents have visited him regularly. Even at Lithgow they made the trip up there. They see him every week. His relationship with his sister has, for the time being, broken down. She has not come to see him. Another reason is the prudent decision of their parents not to expose her to the prison environment. His parents remain supportive and indicate that he will have accommodation back at home when he is released. A job will be available from an employer who is in tile and granite designs and exhibit 4 acknowledges that. Mr Sukkar himself wants to use the time after he is released from custody to undertake further education and is particularly interested in community services, including working as a drug and alcohol counsellor. He is prepared to undertake counselling whilst on parole. He does not want to use again and he is prepared to be subject to conditions including urinalysis.

He acknowledged that he knew that what he was doing was wrong at the time. It was put to him by Ms Rowbotham in cross-examining him that the plan was formed to rob the pizza man when they phoned; or at least she asked him that but he denied it. He indicated that they ordered the pizza in order to eat it. Ms Rowbotham explored the circumstances of the offending and Mr Sukkar described himself being paranoid when he punched the pizza delivery man in the face. He said that there was no plan to drive away from the scene with the pizza delivery man but that just occurred. I asked why he punched the man, he said because he was staring at him. He said he did not see the knife or the broken bottle which was used to assault the pizza man in the reserve but he acknowledged in cross-examination that he did not call an ambulance despite the obvious condition of the pizza man and that he had, to use the expression, "torched" the pizza man's car.

Mr Heathcote also called Mrs Sukkar, Mr Sukkar's mother, who acknowledged the major fallout in the family relationship with their son before his arrest. Mr Sukkar, the offender's father, works very hard. He worked in two jobs and obviously is a very good provider for the family. Mrs Sukkar said that there were strains in the relationships at home including between her and her husband which is quite understandable. Added to their son's behaviour was some financial pressure as well. Mrs Sukkar herself is very much involved in the community. She not only, as I said, is a teacher but is involved in the Maori community in Sydney through herself and through her church. Mrs Sukkar - significantly as his mother - acknowledged a massive change in her son since he has been in custody. She said that he has obviously realised the position he has got himself into and she can see the change in him. She described it as "having our son back" and as being "the normal loving child we used to have". She said it was obviously a painful but positive change which her son has gone through and that relationships had improved absolutely between Mr Sukkar and his parents. He will be encouraged to live at home on his release and to undertake some study.

In addition to that evidence I was assisted by a pre-sentence report which acknowledged his stable and supportive home environment but the impact of his drug taking and behaviour and the company he kept. The report noted that Mr Sukkar had not received any institutional misconduct charges since he has been in custody and has completed a number of programs and courses whilst in custody. Mr Sukkar acknowledged to the case manager preparing the report that his behaviour had been pathetic and also made reference to the impact which his actions had on the victims. The author noted that Mr Sukkar "appears motivated in maintaining his abstinence from illicit drugs and expressed a willingness to continue with drug and alcohol counselling". He thought him suitable for a low to medium level of intervention and suitable for a Community Service Order or Periodic Detention Order.

I must say immediately that neither of those is an option because I am satisfied, having considered all the possible alternatives, that no penalty other than imprisonment is appropriate in this case.

The other source of information about Mr Sukkar is a report from the well regarded forensic psychiatrist Dr Stephen Allnutt. Dr Allnutt saw Mr Sukkar in custody a few weeks ago. Once again Dr Allnutt records the remorse expressed by Mr Sukkar about what he has done and quoted him as saying "He said he knew that they were still suffering; he said he had been a victim before so he knew what it felt like". Dr Allnutt reviewed his personal and medical history and expressed the opinion that when he saw Mr Sukkar a few weeks ago he was manifesting "symptoms consistent with an adjustment disorder with a depressed mood". He did not show any active symptoms of psychosis.

Compared to that Dr Allnutt noted that at the time of offending Mr Sukkar had been using methamphetamines for some months and had described to the doctor hearing voices. Dr Allnutt said that those symptoms "would suggest an amphetamine induced psychosis from which he recovered after his incarceration and with discontinuation of substances". He was playing a particular computer game called Grand Theft Auto and was experiencing "periods of losing boundaries between himself and the television". That condition of amphetamine induced psychosis was likely to be present when he involved himself in the robbery and kidnapping of the pizza delivery man. So far as breaking into the garage and stealing, Dr Allnutt was of the view that it was also likely that the psychotic symptoms persisted at that time and when he bailed up his friend with handcuffs and duct tape he was beset by paranoid thoughts which were "likely aggravated by his drug induced psychosis that he was experiencing at the time".

There is a letter from the Venerable K. Malcolm Karipa, the Archdeacon for Maori work in the Diocese of Sydney, from the Sydney Maori Anglican Fellowship Church. It describes the Sukkar family and Kyal Sukkar. Mr Karipa highly praises Mrs Sukkar for her involvement in the church and community groups in support of work towards Maori culture and identity. He said that Kyal Sukkar was like Maori people, kind and deeply considerate. He acknowledged that Mr Sukkar understood the serious nature of his offence and asked me to take into account his background and the fact that he has the full support of his family. They are matters which I will take into account.

I have been considerably assisted by the submissions both of Mr Heathcote and from Ms Rowbotham. Ms Rowbotham argued that the especially aggravated detention was in the middle of the range of objective seriousness whereas Mr Heathcote argued that it was slightly below the middle of the range. I think this offence is clearly in the middle of the range of objective seriousness. That range is, as Ms Rowbotham says, a wide range. What I take into account in determining that are the following factors.

There were two to three co-offenders; a crime committed in company might be committed with one other, in this case there were two and then three co-offenders.

The victim was repeatedly assaulted, not just once or twice, although I take into account that some of those assaults were not perpetrated personally by Mr Sukkar.

The victim, and this is important, was particularly vulnerable. There are a number of services in the community which rely upon people putting themselves into a vulnerable position in order for ordinary people to enjoy certain pleasures in life. Bankers are an example; people who operate late night service stations are another example; taxi drivers are an obvious example. People who are prepared to deliver food on order such as pizzas must fall into that category. The victim of this crime was particularly vulnerable. Mr Sukkar and his co-offenders took advantage of that vulnerability.

In addition I take into account the use of a weapon. Although it was not part of this offence it was clearly something which, in the circumstances, the victim knew about because he had been bailed up and relieved of his money by having what he regarded as a pistol thrust into his face.

The period of detention was some three and a half hours. Mr Heathcote is right to say that it was not two or three days but on the other hand is not five minutes or twenty minutes. This man was subject to some three and a half hours of terror. He was driven around from place to place and the purpose was to secure more funds and to pick up a co-offender.

There is a question whether what occurred in the park amounted to gratuitous cruelty as an aggravating factor. Under s 21A(2)(f) of the Crimes (Sentencing Procedure) Act 1999 I am of two minds about that. On balance I will be conservative and not take it into account as a particular aggravating factor under that section. I have in mind the remarks of Howie J, with whom the Chief Judge at Common Law and Simpson J agreed, in R v McCullough [2009] NSWCCA 94 at [30]. I do take into account what occurred in the park as features of this crime which make it more serious than other examples of the crime but I do not take into account what happened in the park as an example of gratuitous cruelty under s 21A of the Crimes (Sentencing Procedure) Act.

So far as the armed robbery is concerned I accept Ms Rowbotham's submission that it falls almost squarely within the guideline judgment delivered by the Court of Criminal Appeal in R v Henry (1999) 46 NSWLR 346. The offender in this case was young with effectively no prior convictions. There was limited planning. There was limited violence but a threat. A relatively small amount was stolen and he pleaded guilty. There was, exceptionally to Henry, no weapon like a knife.

But I also take into account Mr Heathcote's argument that the guideline judgment in Henry although envisaging a plea of guilty does not allow for the extent of the discount which Mr Sukkar is entitled to in this case. Turning to that question, it is common ground that he pleaded guilty at the earliest available opportunity so that his sentences will be discounted by twenty five percent for the fact that he has made the administration of justice in this State more straightforward. What might have been a long and complicated criminal trial involving many witnesses having to live through their experiences has been rendered much shorter by his plea. For that he will be given a discount of twenty five percent. I must also take into account though that the armed robbery was committed whilst he was in company with others and on a vulnerable victim.

So far as the aggravated break enter and steal is concerned it is common ground that it is at the lower end of the range of objective seriousness. For that reason I do not regard the standard non-parole period as being applicable. It was a garage rather than a dwelling, there was no ransacking involved and Mr Sukkar had no relevant prior convictions. There was, I am satisfied, some planning in the offences involving the pizza delivery man but it was very limited, indeed limited to the time between placing the call at which it had not been formulated and when he arrived perhaps some five minutes or so later.

Mr Sukkar is obviously remorseful. His remorse fits the provisions of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act. He has accepted responsibility for his actions and acknowledged the injury caused by those actions.

I do not accept that he was not fully aware of the consequences of his actions. He was in a drug induced psychosis but acknowledged himself that he knew what he was doing was wrong. That is also apparent from the fact that he was wanting to ensure that the victim was not able to identify him at a later stage.

I do take into account, as I have already said, that his record is negligible and it will have no adverse impact upon his sentence. Indeed I am sentencing him as one who has the benefit of no previous offending so far as I am concerned and that will be a mitigating factor under s 21A(3)(e).

I am satisfied that he is unlikely to re-offend and I am satisfied from the evidence I have heard that he has good prospects of rehabilitation.

I am not satisfied that he is a person of good character. His family is certainly a very good family but given his acknowledgment of his behaviour and drug taking activities over the years I am not satisfied that he has a very good character. To some extent, as acknowledged by Mr Karipa, he has good qualities and those good qualities are more apparent now than they were some years ago.

There is a question as to whether the sentences for the offences should be cumulative or concurrent. I accept Ms Rowbotham's submission that the specially aggravated kidnapping was a significant escalation of the criminality involved in the armed robbery. For that reason I propose to accumulate the sentences by some six months so that some of the time that he will serve will be attributable to the armed robbery. I have determined that the appropriate course for the break and enter will be to set a fixed sentence which, because of its relative lack of seriousness, will be concurrent.

I accept Mr Heathcote's submissions that there are special circumstances for adjusting the normal ratio between a non-parole period and the balance of the term. In other words that Mr Sukkar should spend more time than the standard time on parole. Those special circumstances are the need for an extended period for rehabilitation in the community including for drug rehabilitation. As Mr Heathcote argued correctly I think the power of a drug addiction will remain for many years if not his life and he has been having trouble in his life for many years so will require a longer time to get back on track. He is a young man and this is his first time in custody and he needs assistance also when he is eventually released in getting back to work and to study.

Generally, so far as his personal factors are concerned, as I said I take into account the fact that he is a young man from a very good family. He has had a disruptive school life and he is now older and more mature and is no longer taking drugs. He has, it seems to me, woken up to himself in custody as Mr Heathcote argued and used the time in custody very well. He was barely an adult when he committed these offences which I take into account and his family is very supportive.

I come now to the sentences in those circumstances which I propose to impose. The armed robbery is one I accept which falls within the Henry guidelines of between four and five years. Although there was no weapon like a knife on the other hand it was committed in company and on a particularly vulnerable victim, I would regard an appropriate sentence as five years imprisonment. That already takes into account, in accordance with the guideline, a plea of guilty but it does not take into account a plea of guilty worth twenty five percent discount so to speak. Accordingly I propose to reduce that armed robbery penalty to one of four years imprisonment that will date from 7 April 2009 and I will fix a non-parole period of two years imprisonment to that offence.

For the aggravated break enter and steal I impose a fixed sentence of two years imprisonment to date from 7 April 2009 and to expire on 6 April 2011.
As I said, so far as the specially aggravated kidnapping is concerned I am satisfied that it is in the middle of the range of objective seriousness. I also must take into account the offences on the form under s 32 of the Crimes (Sentencing Procedure) Act. I would regard an appropriate commencing penalty, so far as this offence is concerned, as ten years imprisonment. Because of his personal features which I have mentioned I would adjust that to eight years imprisonment. However Mr Sukkar has pleaded guilty at the earliest available opportunity and that must be reflected in this particular penalty. I therefore will discount that penalty of eight years to six years imprisonment and I will specify a non-parole period of three years imprisonment. I will direct that that sentence commences six months after he first went into custody, namely on 7 October 2009. The non-parole period will commence on the same date.

I will formally sentence you now Mr Sukkar, if you would stand up. In fact I am going to make one adjustment, the break enter and steal I have not discounted yet, I am going to now discount that by twenty five percent for the plea so that will be an eighteen month penalty from 7 April 2009 to 6 October 2010.

For the aggravated break enter and steal I impose a sentence of eighteen months imprisonment to commence on 7 April 2009 and to expire on 6 October 2010. There will be no non-parole period because of the other sentences which I will impose.

For the armed robbery offence I set a non-parole period for the sentence of two years imprisonment to commence on 7 April 2009 and to expire on 6 April 2011. The balance of the term will be two years from 7 April 2011 to 6 April 2013. I am satisfied there are special circumstances for adjusting that balance including the other sentence which I am about to impose.

For the specially aggravated kidnapping offence I set a non-parole period of three years imprisonment to commence on 7 October 2009 and to expire on 6 October 2012. The balance of the term will be three years to commence on 7 October 2012 and to expire on 6 October 2015. The first date upon which it appears to me you will be eligible for release on parole is 6 October 2012. Have a seat Mr Sukkar for the time being.

HIS HONOUR: Now first the mathematics, whether I have made any errors in the mathematics at the end.

ROWBOTHAM: I think the maths is okay your Honour. My concern is with the offence that carries the standard non-parole period my understanding from what the Court of Criminal Appeal has said recently there has to be a non-parole period fixed.

ROWBOTHAM: Just while on that point, your Honour said with respect to the aggravated break enter and steal, I think you said something along the lines of you find that the standard non-parole period does not apply. I assume that your Honour means that that's a reason for you to depart from the standard non-parole period. Clearly the standard non-parole period applies but you departed from it for the reasons you've given.

HIS HONOUR: Yes, well that's a question because it's a sentence which applies to an offence which is in the middle of the range - let's look at the legislation - of objective seriousness. You are right, I am going to add to that, I'll fix that in a moment. What about you, Mr Hanrahan?

HIS HONOUR: Now any factual or legal things I need to tidy up? Ms Rowbotham has drawn my attention to the standard non-parole period issue which I will adjust.

HANRAHAN: I think my learned friend has covered those two issues your Honour, I don't have any other issues.

HIS HONOUR: Yes, thank you. I return to my remarks on sentence.

I determine that there are reasons for setting a non-parole period which is shorter than the standard non-parole period for the aggravated break enter and steal. Those reasons are my opinion that this matter does not fall within the middle of the range of objective seriousness, in fact it falls well below for offences of this type. The penalty which I impose for the aggravated break enter and steal is eighteen months imprisonment with a non-parole period of twelve months. The eighteen months imprisonment will commence on 7 April 2009 and expire on 6 October 2010. The non-parole period will commence on 7 April 2009 and expire on 6 October 2010.

HIS HONOUR: Anything else which I need to adjust? His sentences are longer than three years so I don't fix parole and I'm thinking, Mr Hanrahan, that in some instances I understand from general experience that it can be of assistance for the psychiatric report of an offender to accompany him into custody because it assists them in classifying him but I won't do that unless you want me to.

HANRAHAN: Yes, if your Honour does that it would be of assistance.

HIS HONOUR: You don't happen to have a clean copy, do you?

HIS HONOUR: The best thing is to have it attached to his papers and go with him then he is classified or assessed.

ROWBOTHAM: While that's being handed up would your Honour make an order for your Honour's remarks on sentence? There is a co-accused going to trial in May and in the event he's convicted it would be a good idea to have your Honour's remarks.

HIS HONOUR: I will. I direct that a transcript be taken out of my remarks on sentence.

Mr Sukkar your overall sentence is six and a half years, do you understand that, that's your overall sentence. The armed robbery you've got four years, that started when you went into custody last year, 7 April 09 and it expires on 6 April 2013 and I fixed a non-parole period two years for that so that non-parole period comes up on 6 April 2011 but you will still be in gaol after that. For that break and enter of the garage you've got 18 months for that. Once again that starts when you went into custody, it's already running like the armed robbery. So 6 April 2010 is your non-parole period and your 18 months expires on 6 April 2010. Your main sentence is for the kidnap. I started that six months after so it started ticking on 7 October last year and I've done that because there were two offences against this pizza man and you're serving some of the time for the armed robbery. And that's a sentence of six years because it is such a serious crime and I've fixed a non-parole period of three years that also commences on 7 October last year so your non-parole period for that will expire on 6 October 2012. So you've got about another just under two and a half years before you are eligible for parole. I say eligible, I don't order your parole for this sort of sentence, the Parole Board determines whether you get it or not. I would think that if you keep behaving as you are at the moment you should have no trouble getting parole at all and they will fix conditions for you on parole.

So your first eligible release date is 6 October 2012 and your longest sentence finally expires on 6 October 2015, that's three years after, so when you are on parole you are still serving your sentence but you are in the community and if you mess up you can go back into custody. Do you understand that?

All right, you've heard everything that I've said about you and your family. It seems to me that you're on the right track, just keep doing what you are doing. I am going to direct that the report of Dr Stephen Allnutt dated 1 April 2010 accompany you with the warrant into custody.

HIS HONOUR: Is there anything else I need to attend to, Ms Rowbotham, Mr Hanrahan?

HIS HONOUR: You take it from there Mr Sukkar and good luck. I now adjourn.

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Judgment (89 paragraphs)

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Cases Cited (3)