Kukovec v R [2014] NSWCCA 308

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kukovec v R [2014] NSWCCA 308 Hearing dates: 8 December 2014 Decision date: 12 December 2014 Before: Simpson J at [1]; Rothman J at [46]; Wilson J at [47] Decision: (1) Leave to appeal against sentence granted; (2) Appeal allowed, sentence quashed; (3) In lieu thereof, the applicant be sentenced to imprisonment made up of a non-parole period of 1 year and 6 months commencing on 13 June 2013 and expiring on 12 December 2014, with a balance of term of 1 year, expiring on 12 December 2015; (4) Direct that the applicant be released at the expiration of the non-parole period on 12 December 2014. Catchwords: APPEAL - sentencing - aiding and abetting aggravated robbery - whether error in treatment of commission of offence in company as aggravating factor - Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2) - principal in the second degree, Osland v The Queen [1998] HCA 75 - appeal upheld

APPEAL - appeal against severity of sentence - whether sentence manifestly excessive in light of the applicant's subjective case - R v Henry [1999] NSWCCA 111 - sufficient 'special consideration' already granted - appeal dismissed

APPEAL - sentencing - parity, whether legitimate sense of grievance when sentence considered in relation to co-offender's sentence - role in offence - appeal upheld - applicant re-sentenced Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A, s 21A(2), s 44(2) Crimes Act 1900 (NSW), s 95(1), s 345 Criminal Procedure Act 1986 (NSW), s 166 Cases Cited: Osland v The Queen [1998] HCA 75; 197 CLR 316 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 Category: Principal judgment Parties: Joseph Kukovec (Applicant) Regina (Respondent) Representation: Counsel: R Burgess (Applicant) N Williams (Respondent) Solicitors: S E O'Connor - Legal Aid NSW (Applicant) S Kavanagh - Solicitor for Public Prosecutions (Respondent) File Number(s): 2013/15398 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-11-15 00:00:00 Before: Blackmore DCJ File Number(s): 2013/15398