R v Sukkar

Court of Criminal Appeal (NSW)|2011-03-30|Before: Simpson J, Davies J, Grove AJ

Judgment 1Simpson J: I agree with Davies J. 2Davies J: On 6 August 2010 the Respondent stood trial before her Honour Judge Wells SC and a jury charged with an offence of robbery whilst armed with an offensive weapon contrary to s 97(1) of the Crimes Act 1900. He was found guilty. On 26 November 2010 he was sentenced by Judge Wells to a term of imprisonment for 2 years commencing 6 August 2010 with a non-parole period of 10 months with such non-parole period expiring on 5 June 2011. The maximum penalty for this offence is imprisonment for 20 years. 3The Crown appeals against the sentence on the basis that it was manifestly inadequate. 4The Crown case was one of a joint criminal enterprise with the co-offender Dean Kriticos. In short, the Respondent drove the motor vehicle in which Kriticos was a passenger, the Respondent waited in the motor vehicle whilst Kriticos entered the premises intending to rob the occupiers therein, and then drove Kriticos from the scene afterwards. 5Kriticos pleaded guilty to the same offence, and as part of his plea in mitigation he undertook to give evidence against the Respondent at the trial. Pursuant to that undertaking he gave evidence at the Respondent's trial. 6Kriticos was sentenced on 22 April 2010 by Judge Solomon. Judge Solomon discounted by 50% the sentence he said he would otherwise have imposed to reflect the early plea of guilty and the assistance to be given. He then found special circumstances to vary the 3 year sentence so that ultimately Kriticos received a sentence of a non-parole period of 1 year and 10 months with a balance of 1 year and 2 months.

Facts 7Her Honour found the following facts set out in her Remarks on Sentence. This offender and Dean Kriticos, as it turns out, had been friends having grown up in the same neighbourhood. On the evening leading up to this offence, somewhere between 7.30 and 8 o'clock, this offender and Kriticos went to the Roxia [sic] Hotel in Rockdale. They stayed until closing time, that is, about 1.30 am. During the night whilst the two men were out this offender withdrew $490 from his account through an ATM in six separate transactions. It was the evidence of Kriticos that they wanted to stay out but needed more money and that is when the idea of a robbery came up. The offender disputed that he needed any extra money at all and produced evidence to show that he had very significant sums of money in his bank accounts that he had saved from wages and over the years. This offender says that he only continued to be out in the company of Mr Kriticos that night because he was there supporting Mr Kriticos who had recently broken up with a girlfriend and was otherwise in poor spirits. The offender drove Kriticos to his house where Kriticos states that he obtained a knife, a beanie and a dumbbell. According to Kriticos the offender saw the items and asked him if he had everything ready. This is a matter of factual dispute that needs to be resolved. They went to a nearby service station, according to Kriticos, where he intended to use a dumbbell to break into the shop of the service station and steal money. However, he saw that the cash register was opened and empty so he got back into the car and threw the dumbbell away soon after. The two of them then drove to Oxford Street in Surry Hills. It was the evidence, again, of Kriticos that there was discussion between them about the offence that they were to commit, that is, that there was some sort of loose plan to commit a robbery probably of the sex shop in Oxford Street. As to the facts this offence involved robbery at the Adult Triple X City Sex Shop in Oxford Street, Surry Hills at around 3 am on 27 June 2009. This offender was the driver of the getaway car. His accomplice, Dean Kriticos, armed himself with a knife and after entering the upstairs shop Kriticos approached Mr Yaseen Khan, the only person who was present and working in the shop at the time. Kriticos demanded money. He told Mr Khan that he did not wish to hurt or hit him, however, when Mr Khan removed the key from the cash register Kriticos punched him in the face and there was a physical struggle. Mr Khan eventually escaped and ran from the shop calling for help. Kriticos grabbed the entire till and ran from the shop across Oxford Street and to the offender's vehicle which was waiting or parked in a side street almost directly across from the crime scene. Once Kriticos got into the vehicle that was driven away by the accused. From the point that the victim and Kriticos exited the steps from the shop until the time that Kriticos got in the car and was driven away, there is a CCTV recording of that aspect of the offence. Soon after the money was removed, the till was thrown from the car along Crown Street. After the robbery occurred Mr Khan, the complainant, called the police. After viewing the CCTV footage police obtained the registration of the getaway car which, in fact, was a utility vehicle owned by this offender. Police contacted the offender's mother, however, he had not yet reached home. His mother phoned him and told him that the police wanted to speak to him. He arrived home sometime afterwards and parked his car away from the home in a nearby street. Later in the morning police found his ute and made contact with the offender. He co-operated by meeting them where his ute was parked. He was arrested and taken to the police station and there he was interviewed. During the interview the offender admitted he was the driver of the vehicle but he had no real knowledge that the offence was going to take place. He nominated Kriticos as the offender. Further details from the interview are as follows:

The accused told police he had plenty of money and did not have to rob sex shops. He said he only found out about the robbery when Kriticos returned the car after the event. (Q and A 28).
The offender told police that they had a fantastic night at Roxia [sic], that he consumed a little bit of alcohol. He said that Kriticos was complaining about never having money and wanting money. They drove towards Oxford Street to finish off the night. He said when they arrived he was quite tired and decided to have a rest. Kriticos said he was going to "sus things out". The offender said about twenty to twenty-five minutes later the accused woke him up, got in the car and told him that he did not believe that he had done this. He said (referring to the robbery) that Kriticos was shocked at what he had done. Kriticos said it was "a spur of the moment thing". He drove off in an orderly fashion. He did not speed. He said there was not much in the till probably about $280. He said he was a little bit in shock himself. (Q and A 52).
He denied there was any talk about a robbery at the Roxia [sic]. He said it was never planned. He said, "I think he just got to breaking point (referring to Kriticos) so, that he just didn't care. Maybe he was intoxicated. Maybe he thought he was on another level". (Q and A 85).
The offender said to police that he was not intoxicated that night, just tipsy. He said he was driving and likes to keep himself to a point where he knows what he is doing. (Q and A 100-101).
He said that he knew that Kriticos wanted to make some cash and that he did not think it was going to go to that extent. (Q and A 119).
The offender said he asked Kriticos, "Are you sure you want to do this?" (Q and A 120).
Kriticos said to him that he wanted to make some money. He wanted to rob something. He did not say exactly what he was going to do. (Q and A 121).
Kriticos said to him that he did not want to hurt anybody. He just wanted to make money and the only way he could do it was to steal it somehow. (Q and A 123).
The offender said that this conversation occurred as they got in the car and drove towards the city. Kriticos said the only way that he could do it was to steal it somehow. The offender said that a [sic] certain point he told Kriticos that he should just do whatever made him happy because there is only so much you can say to somebody. The offender said that Kriticos was not planning on getting big money, he just wanted a few hundred. The offender said he did not think he was going to do it yet and that he was just thinking about it. (Q and A 128-130.).
The offender said that Kriticos wanted to rob the till, that he wanted to do it in an orderly fashion. He just wanted for them to hand over the money and for him to walk away. (Q and A 133).
Kriticos did not actually say to the offender what shop or what he was going to do, he just mentioned a till. (Q and A 138).
The offender said he was not aware that Kriticos had any weapons.

Subjective features 9Her Honour noted that the Respondent was aged 29 years at the time of sentence. He had no criminal record and had been on bail for a period of 14 months without a breach. 10Her Honour noted a report from a psychologist Sam Borenstein who assessed the Respondent and administered a Personality Assessment Screener that indicated his potential for emotional and/or behavioural problems was substantially less than is typical for community adults. There was nothing that alerted the need for psychological intervention. 11The report, as her Honour noted, showed a very good work record with the employer describing the Respondent as a valued and hard worker, and that the employer would be offering a return to his position as a courier driver after his release from prison. 12The Respondent also had a supportive partner and family with whom he was close. 13Her Honour also noted that the Respondent disagreed with the police facts, and maintained his innocence at all times stating that he did not plan or take part in the commission of the offence. Her Honour noted in that regard that that was in contrast with the verdict of the jury and, in any event, that it flew in the face of the Respondent's own version of events which showed that he played a part in the commission of the offence as an accessory after the fact. Her Honour said that his continuing declaration that he did not play any part in the commission of the offence was quite wrong and troubling when one came to consider the issue of remorse.

Her Honour's sentencing considerations 14Her Honour considered the guideline judgment in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 which indicated a starting point of 4 to 5 years as the appropriate range in matters like the present. Her Honour thought that there were many similarities with the factors referred to in Henry . There was, however, one particular factor that her Honour thought distinguished it to a considerable degree, and one lesser factor. The lesser factor was that the Respondent was in an older age range than the usual offender considered to fall within the Henry Guideline, but her Honour said that that was of no assistance to him except that he had reached the age of 29 years with no prior offences. 15The significant distinguishing factor was of the Respondent being an accomplice - being neither the principal offender nor the instigator of the offence. Her Honour thought that the starting point would be markedly less than the range of 4 to 5 years, justified by the Respondent's relatively minor and belated involvement in the offence. 16Her Honour considered a number of cases concerning the role of a second degree principal offender or aider and abetter including Johnson v R; Moody v R [2010] NSWCCA 124, R v Swan [2006] NSWCCA 47 and GAS v The Queen (2004) 217 CLR 198. 17Her Honour then dealt with the Sentencing Remarks in respect of Kriticos. She noted that in evidence before her Kriticos conceded that he lived a life that involved the use over a number of years of illicit drugs, and of deceit. She thought that that was a significant factor that distinguished the Respondent from Kriticos.

Grounds of appeal 18The Notice of Appeal contained only a ground that the sentence was manifestly inadequate, but the Crown in its submissions identified 4 grounds as follows: 1.Her Honour made a factual finding that was not reasonably open to her "that the offender did not realise that the knife would be used until just before the offence", and was inconsistent with the jury's verdict. 2. Her Honour erred in the assessment of the seriousness of the Respondent's involvement in the robbery particularly in comparison with his role in the joint criminal enterprise with Dean Kriticos. 3. Her Honour gave too much weight to the differences between the Respondent's subjective features, as opposed to those of his co-offender's, Dean Kriticos. 4. Her Honour's sentence was manifestly inadequate. In particular, her Honour failed to impose a sentence that complied with the guideline judgment in R v Henry .

Ground 1 - the facts found 19In relation to Ground 1 the Crown identified the 4 factual findings of her Honour (set out in para [8] above) that she used to impact on the objective gravity of the Respondent's involvement. These findings can be summarised as follows: (i) That he had no knowledge or expectation that Kriticos would strike the victim; (ii) That the discussions prior to the robbery were vague, and the appreciation of the robbery committed by the respondent was only formed shortly before it began; (iii) The respondent only knew the knife would be used just before the commission of the robbery; (iv) The respondent did not desire to make money from the robbery. 20The Crown accepted that the findings numbered (i), (ii) and (iv) were open to her Honour. The Crown disputed, however, that it was reasonably open to her Honour to find that the Respondent did not know that the knife would be used until just before the offence. 21The Crown submitted that although the finding of facts after a jury's verdict was a matter for her Honour, the facts found had to be consistent with the jury's verdict and based on the evidence before her: R v Ronald John Pilley (1991) 56 A Crim R 202. 22The Crown case of a joint criminal enterprise relied on the evidence of Kriticos. The evidence of Kriticos was relevantly this: · that he had a discussion with the respondent at the Roxy Hotel of the need to obtain more money · That they agreed to do a robbery/stealing · That the respondent drove to Kriticos' house whereupon he obtained a knife and a dumbbell · That he openly had the knife out on his lap as the respondent drove the car and opened and closed the knife · That he left the car with the knife and dumbbell at an earlier stage in order to commit an offence at a service station · That he got back in and still had the knife out, when they drove to Oxford Street to commit the robbery. 23The Respondent's evidence was that he knew nothing about Kriticos having a knife, getting a knife from the house, or having it in the car, and that he never discussed being involved in a robbery with Kriticos. 24The Crown submitted that the jury must have rejected that evidence of the Respondent or they could not have convicted him. The Crown submitted, therefore, that her Honour had no basis to speculate that the Respondent only became aware that the knife would be used immediately before the robbery. There was no evidence of that sort in the trial at all. 25In R v Ronald John Pilley Finlay J (with whom Handley JA and Allen J agreed) said (at 203-204): It is, of course, the Judge's responsibility to determine the facts relevant for sentence consistent with the establishment of the essential legal ingredients of the crime; whether by way of admission on the plea of guilty or as in this case, pursuant to the jury's verdict of guilty. ( Veen v Regina (1919) 143 CLR 458 per Stephen J 466; Kingswell v The Queen (1985) 159 CLR 264 at 283 per Mason J and Maher v The Queen (1987) 163 CLR 221 at 228 per Mason J, Wilson J and Toohey J. I add to those references the following passage from the judgment of Gibbs CJ, Wilson J and Dawson J in Kingswell v The Queen (1985) 159 CLR 264 at 276: "If there is a trial by jury the ordinary incidents of such a trial will apply; the Judge will continue to exercise his traditional functions, and, for the purpose of imposing a sentence within the limits fixed by the law will form his view of the facts, provided, that that view is not in conflict with the verdict of the jury." The following basic propositions can be stated: (1) Once there is a verdict or plea of guilty it is entirely for the Judge to determine the relevant facts for the purpose of sentence in conformity with the essential elements of the crime which such verdict or plea establishes. ( Regina v Martin (1981) 1 NSWLR 640 at 643 per Hope JA; Regina v The Accused (1988) 1 NZLR 422 at 426 and 427; Saffron (No. 3) (1988-9) 39 A Crim R123 at 125). 26The Respondent was convicted of robbery whilst armed with an offensive weapon, and the jury's verdict was reached because the jury must have been satisfied that the Respondent was engaged in a joint criminal enterprise with Kriticos. When her Honour found as a fact that the Respondent did not know or realise the knife would be used until just before the commission of the offence, she did not find that fact inconsistently with the jury's verdict. 27Where the Crown accepts that it was open to the Judge to find that the Respondent only formed the appreciation of the robbery committed shortly before it was committed (fact (ii) above), it must therefore have been open to her Honour to make the finding about when the Respondent knew or realised the knife would be used. Provided that it is found that the Respondent was aware that the robbery was to be committed and that it involved the use of a knife at some time before Kriticos left the car, the findings were consistent with the jury's verdict. In that way the facts found are in conformity with the essential elements of the crime which the verdict established. Put the other way, the finding of those facts does not conflict with the jury's verdict. 28The principle established in the cases referred to does not require the Judge to assume that the jury must have accepted all of the evidence of one witness and none of the evidence of the other. Nor does it require the assumption that the jury concluded that the facts must only have been as one or any other of the witnesses recounted them. That is because the essential elements of the crime do not involve a determination of when the Respondent must have known or realised particular matters provided he knew or realised them before Kriticos left the car. 29No error is shown in this regard and I would reject this ground of appeal.

Grounds 2 and 3 - comparison with co-offender 30When Judge Solomon sentenced Kriticos it is clear from his remarks that he considered that the appropriate starting point was a 6 year sentence. The guideline judgment in R v Henry held that a range of 4-5 years was appropriate. The Sentencing Judge said that in her view the starting point would be markedly less than the range of 4-5 years imprisonment proposed in Henry because she considered the lower starting point was justified by the Respondent's relatively minor and belated involvement in the offence. Her Honour went on to say that the Respondent's role was one of waiting across the road as the driver of the car. She said it could not be suggested that he took any other role and certainly not one where he might be ready and able to assist Kriticos if required during the commission of the offence. 31She noted that Judge Solomon regarded the involvement of Kriticos as falling outside the Henry Guideline in a more serious category on the basis of the actual violence that was committed against the victim. She noted what Judge Solomon said about the criminal record of Kriticos and his significant history of poly-substance abuse and dependence. She said she bore in mind the principles of parity and in that regard she distinguished the Respondent from Kriticos on the basis of his different and lesser role and his superior subjective details when compared to Kriticos. She said also that she distinguished his involvement by reason of his motivation, which was not in order to obtain money (there was evidence that he had plenty of money in his account that was drawn on during the course of that night) but in a sense as part of a misguided loyalty to Kriticos. 32The Crown submitted that her Honour erred in the assessment of the relative criminality of the Respondent's conduct by finding such a disparity of seriousness between the Respondent and Kriticos on the basis that he was the "getaway" driver. 33The Crown then set out a number of matters which suggested there was little difference between the co-offenders, either when judging the objective features of the crime or the subjective circumstances of each of them. In relation to the objective features the Crown referred to a number of decisions concerning the proper approach to sentencing those involved in a joint criminal enterprise particularly where the roles of the participants differed. In relation to the subjective features the Crown set out the matters considered by the Sentencing Judge including his age, his criminal record and his background, and compared the position of Kriticos with regard to those matters. 34A number of submissions made by the Crown, in relation to the way Kriticos was dealt with by comparison with the Respondent, might be thought to amount to submissions on a parity argument between the sentences given to each of the offenders. The Crown denied that this was so and said that the point of the submissions was the Henry guideline and the objective gravity involved in the offences that led to the sentences given. 35It is difficult to see how grounds 2 and 3, in the way they have been formulated, can be seen as other than grounds based on the parity principle. An assertion that there was error in the assessment of the seriousness of the Respondent's involvement particularly in comparison with the role of the co-offender, and an assertion that her Honour gave too much weight to the differences between the Respondent's subjective features when compared to those of the co-offender can only be considerations involving the parity principle. 36To the extent that the grounds do not raise the parity principle they seem only to deal with the proper approach to sentencing for a joint criminal enterprise particularly where the co-offenders have different roles in the enterprise. Although the starting point is that the offenders were parties to the same joint criminal enterprise, and that should not be lost sight of, ( Johnson v R; Moody v R at [4]), and that one should not identify the differences in the roles with any precision ( R v Hoschke [2001] NSWCCA 317 at [18], R v JW [2010] NSWCCA 49 at [161], Johnson v R; Moody v R at [11]), it is always relevant to refer to the particular conduct of each such participant with a view to identifying the level of culpability for which each must be sentenced ( R v JW at [161], and see Johnson v R; Moody v R at [4] and [94], Regina v Darwiche & Ors [2006] NSWSC 1167 at [74], Regina v Rick Barry Swan [2006] NSWCCA 47 at [72] and [74]). 37The Crown accepted that the roles of the Respondent and Kriticos could be differentiated by reason of the violence employed by Kriticos and "to a very limited extent" that the Respondent was the getaway driver. The Crown submitted, however, that that could not justify a difference between a starting point of 6 years and 2 years. 38However, there were other differences identified in the 4 factual findings set out in paras [7] and [18] above. Those factual findings meant that there were significant differences in the roles of the Respondent and Kriticos. It is clear from the evidence of Kriticos that he had planned the robbery by no later than the time that he retrieved particular items including a knife and a dumbbell from his house. Further, findings (ii) and (iii) show not only a lack of planning on the part of the Respondent but that he was only confronted with what Kriticos intended to do a very short time before Kriticos alighted from the car. Factual finding (iv) provides a further, albeit less significant distinction in their role. 39In relation to the Respondent being the driver, her Honour made express reference to Barr AJ's comments in Johnson v R; Moody v R at [94] where he said: In my opinion his Honour was correct to distinguish between the roles the two offenders played. It was more serious to enter premises and repeatedly level a firearm and threaten people's lives then to wait outside in a car. ... 40I would reject grounds 2 and 3.

Ground 4 - manifest inadequacy 41The principal submission of the Crown in relation to this ground was that the Respondent fitted well within the factual matters to be considered according to Henry at [162], but that the sentence given by the Trial Judge bore little resemblance to the Henry Guideline range for the sentence. The Crown submitted that the only difference between the Respondent and the Henry Guideline was the Respondent's age which the Crown submitted worked both in favour of, and to the disadvantage of, the Respondent. In those circumstances, the Crown submitted, there was no basis for the Respondent being moved outside the Henry Guideline, let alone moved so far outside it that he received a sentence of 2 years after a trial, and 4 years less than Kriticos. 42The Crown further relied upon the earlier errors said to have been made by the Sentencing Judge, including the fact finding process and the distinction made between Kriticos as the principal offender and the Respondent as the getaway driver. 43I do not agree that the only difference between the Respondent and the Henry Guideline was the Respondent's age. The factual findings made by the Sentencing Judge are significant for the Respondent in relation to the planning of the robbery. So too was the weight given by the Sentencing Judge to the difference in the roles of the co-offenders. 44As the Crown properly acknowledges the narrow range provided for in Henry is a starting point, and aggravating and mitigating factors will justify a sentence below or above the range: Henry at [169]. It is clear that subjective factors are included as mitigating factors - see at [170]. 45The Respondent submitted that the Sentencing Judge was not bound to follow the Guidelines set out in Henry having regard to the criminality of the Respondent and to the objective factors as found by her Honour. The Respondent submitted further that the subjective factors pointed to a clear case for leniency. The Respondent further submitted that if the sentence is found to be manifestly inadequate the Court should take into account matters suggesting that it was the Respondent's assistance to the Police that enabled them to identify and find Kriticos. The material relied on in this regard, including the ERISP and the transcript of the trial, was not provided to the Court. 46In Hili v The Queen; Jones v The Queen [2010] HCA 45 the High Court discussed what is meant by a sentence being manifestly inadequate. The Court said: [59] As was said in Dinsdale v The Queen , "[m]anifest inadequacy of sentence, like manifest excess, is a conclusion". And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate "is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases". Rather, as the plurality went on to say in Wong , "[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons". But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that "the sentence imposed in these matters is so far outside the range of sentences available that there must have been error". [60] The Court of Criminal Appeal also said that "manifest error is fundamentally intuitive". That is not right. No doubt, as the Court went on to say, manifest error "arises because the sentence imposed is out of the range of sentences that could have been imposed and therefore there must have been error, even though it is impossible to identify it". But what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence. The references made by the Court of Criminal Appeal to the circumstances of the offending and the personal circumstances of each offender were, therefore, important elements in the reasons of the Court of Criminal Appeal. [61] The applicants' submissions criticising the sufficiency of the reasons given by the Court of Criminal Appeal pointed out that the Court of Criminal Appeal identified no specific error in the sentencing judge's findings of fact or reasons. That is right, but because the only ground advanced by the Director was the ground of manifest inadequacy, it had to be assumed that the Director alleged no specific error. That the Court of Criminal Appeal identified no specific error is, therefore, unsurprising. The absence of identification of such an error does not bespeak error on the part of the Court of Criminal Appeal. The reasons given by the Court of Criminal Appeal for concluding that the sentences passed were manifestly inadequate sufficiently revealed the bases for that conclusion. 47No specific error by the Sentencing Judge has been demonstrated. Nevertheless, the sentence imposed is considerably less than the range suggested as a starting point in Henry . Whilst accepting that it is a starting point and that, here, there were subjective features which might be thought to have reduced the appropriate sentence, it seems to me that a sentence of 2 years with a non-parole period of 10 months was manifestly inadequate. Particular matters suggesting the manifest inadequacy are that there was no plea of guilty and that the Respondent must be accepted as having been part of a joint criminal enterprise to commit a robbery whilst armed with an offensive weapon, albeit in a less significant role, which ought to have been judged in accordance with the Henry Guideline judgment. 48The Respondent's submission that her Honour was not bound to follow the Guidelines in Henry is not a submission that provides any assistance to the Court. The principles associated with guideline judgments were set out in R v Jurisic (1998) 45 NSWLR 209 and reiterated in Henry at [2]-[31]. In particular, Spigelman CJ (with whom the other 4 members of the Bench agreed on the point) said at [31]: Nevertheless, where a guideline is not to be applied by a trial judge, this Court would expect that the reasons for that decision be articulated, so that the public interest in the perception of consistency in sentencing decisions can be served and this Court can be properly informed in the exercise of its appellate jurisdiction. 49In her Remarks, having referred to the matters that I have set out in paras [13] and [14] above her Honour then said: At any rate, in my view the starting point in this matter will be markedly less than the range of four to five years imprisonment proposed in the Guideline as I consider it justified by the offender's relatively minor and belated involvement in the offence. At a further point in her Remarks her Honour said in relation to the Henry Guideline: I am prepared to distinguish this matter in a significant way due to the difference firstly in terms of his role in the offence and his motivation, which as I found was not in order to obtain money but in a sense as part of a misguided loyalty to Kriticos. ... Further, I should indicate that compared to Dean Kriticos this offender has outstanding subjective factors that would mitigate his sentence. He has always been in gainful employment in particular and has lived the life of a law-abiding citizen and a valued member of the community. 50When the maximum penalty for the offence is 20 years imprisonment, and when the Henry Guideline suggests a starting range of 4-5 years in a case where there is a plea of guilty, I do not consider that her Honour has articulated sufficient reasons for departing, and departing so considerably, from the starting point of the Guideline range. 51In my view the sentence imposed is outside the range of sentences that should have been imposed, and "therefore there must have been an error, even though it is impossible to identify it": Hili at [60]. I would uphold this ground of appeal.

Re-sentencing 52Despite error having been demonstrated it is first necessary to consider whether the appeal should be upheld in the light of the residual discretion available to the Court in a Crown appeal. 53Because of the shortness of the sentence imposed, and because the sentence was backdated to 6 August 2010, the Respondent was entitled to be released to parole on 5 June 2011. There can be no criticism of the Crown in relation to the timing of the appeal. Nevertheless the appeal is only being disposed of at a time after the expiry of the non-parole period. 54The delay in resolution of an appeal, particularly where the non-parole period imposed by the Sentencing Judge has already expired is a proper factor to be taken into account in relation to the residual discretion in this Court whether or not to uphold the Crown's appeal: R v Hernando (2002) 136 A Crim R 451 at [40]; R v Cheung [2010] NSWCCA 244 at [151]; R v Tsoukatos & Kyroglou [1999] NSWCCA 106 at [3], [4] & [98], and see R v Everett (1994) 181 CLR 295 at 305. 55Although consideration must be given to the fact that the non-parole period has expired through no fault of the Respondent, it does not seem appropriate to permit such an inadequate sentence to stand in the light of what was said in Henry . 56In my opinion, the appropriate course to adopt is that which was taken by Simpson J (with whom Spigelman CJ and Wood CJ at CL agreed) in Tsoukatos & Kyroglou at [105] and by Simpson and Howie JJ in R v Price [2004] NSWCCA 186 at [60]. 57Here the Sentencing Judge found special circumstances and was justified in doing so. The Respondent should not be returned to custody. Rather, he should be re-sentenced so that he receives a total sentence of 3 years with a non-parole period of 10 months with the sentence to commence on 6 August 2010 and the non-parole period to expire 5 June 2011. 58I propose the following orders: (1) Appeal allowed. (2) Quash the sentence imposed by Judge Wells SC. In lieu, the Respondent is sentenced to a non-parole period of 10 months commencing 6 August 2010 expiring 5 June 2011 with balance of term of 2 years and 2 months to expire on 5 August 2013. Since the Respondent has already been released to parole it is not necessary to make the order under s 50(1) Crimes (Sentencing Procedure) Act 1999. 59Grove AJ: I agree with Davies J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 June 2011

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