Krotiris v R [2012] NSWCCA 28

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Krotiris v R [2012] NSWCCA 28 Hearing dates: 2 March 2012 Decision date: 21 May 2012 Before: Macfarlan JA at [1] Rothman J at [2] Davies J at [5] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIMINAL LAW - sentence - co-offenders - sentenced by different judges - parity principle - roles of offenders - discount for guilty plea - substituted offence on new indictment - plea after voir dire. Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: Dwayhi v R; Bechara v R [2011] NSWCCA 67 R v Dib [2003] NSWCCA 117 R v Sukkar [2011] NSWCCA 140 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 Rae v R [2011] NSWCCA 211 Sullivan v R; Skillin v R [2008] NSWCCA 296 Category: Principal judgment Parties: Steven Krotiris (AKA Steven Pambris) Crown Representation: Counsel: D O'Neil (Applicant) J Girdham (Crown) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): CCA 2009/12000 Decision under appeal Date of Decision: 2011-05-13 00:00:00 Before: Cogswell DCJ File Number(s): 2009/12000

Judgment 1MACFARLAN JA: I agree with Davies J. 2ROTHMAN J: I have had the advantage of reading the reasons for judgment of Davies J in draft. I agree with the orders proposed by his Honour. 3On the issue of parity, I agree with the reasons of Davies J. 4For my own part, I am not sure that a 5 percent discount adequately reflects the utilitarian value of the plea of guilty in this case, but I am not convinced one way or the other. However, I am sure that no lesser sentence than that imposed is warranted: s 6(3) Criminal Appeal Act 1912. 5DAVIES J: On 19 January 2011 the Applicant pleaded guilty in the District Court to the offence of stealing from a dwelling house contrary to s 148 of the Crimes Act 1900. On 13 May 2011 he was sentenced by Judge Cogswell SC to a period of imprisonment of 2 years and 10 months with a non-parole period of 1 year and 4 months to expire on 12 July 2012. The Sentencing Judge took into account an offence of attempted break and enter with intent to steal on a Form 1. 6The primary offence and the Form 1 offence were committed in close proximity, and were committed in company with one Andrew Schoultz. Mr Schoultz was sentenced by Judge King SC on 24 September 2009 to a period of imprisonment of 2 years with a non-parole period of 1 year. Judge King took into account 2 offences on a Form 1, being the offence of attempted break and enter with intent to steal, and a further offence that the offender was in possession of a housebreaking implement without lawful excuse. 7The sole ground of appeal contained in the Notice of Application for Leave to Appeal was an asserted lack of parity with the sentence given to Mr Schoultz by Judge King. However, during the hearing the Applicant sought leave to add a further ground as follows: His Honour erred in allowing only a 5% discount for the utilitarian plea of guilty. Although this was opposed by the Crown, the Crown could not point to any prejudice if the ground was added. Accordingly, the Court granted leave. 8The Sentencing Judge found the following facts: 5. Mr Krotiris and another man named Andrew Schoultz were in Birriga Road, Bellevue Hill, in the early hours of Tuesday, 9 December 2008; in fact it was about 4.30 in the morning. There was a security gate around a block of units in Birriga Road. The gate was about two metres high. Both of them climbed over the security gate and went down a flight of stairs to the first unit. 6. They tried to get into one of the units. They were seen by one of the occupants who reported what had happened and Mr Krotiris and Mr Schoultz left the scene. They were heard talking by the occupants of the unit they tried to get into and they were seen looking into cars parked in a nearby block of units. The occupants of the unit that they tried to get into called the police. 7. Not knowing that the police were on their way, Mr Krotiris and Mr Schoultz continued with their criminal escapade. They got a makeshift ladder and climbed on to the balcony of a unit in another block of units nearby. The sliding door had been left slightly open for fresh air. It was Mr Schoultz who actually got on to the balcony. 8. He then walked through the sliding door and picked up a computer and a watch which belonged to one of the occupants. He in fact was in the bedroom of one of the occupants. She woke up and not surprisingly screamed and woke her partner who jumped out of bed and told Mr Schoultz to clear off. Mr Schoultz did just this and jumped over the balcony and discarded what he had taken. 9. The man was heard running up Birriga Road and voices were heard saying, "The cops, the cops are here." 10. The police arrived and Mr Schoultz was arrested whilst he was running away. He was wearing a sock on one hand and had a screwdriver and a latex glove as well. They then found Mr Krotiris. They found that Mr Krotiris had Mr Schoultz's phone number on Mr Krotiris' phone. Police asked Mr Krotiris what he was doing and he said, "I was at the top of the street doing 500 steps, push-ups, 500 steps, push-ups."