CICEKDAG v REGINA

Clay v Regina [2007] NSWCCA 106 CASES CITED: R v Henry (1999) 46 NSWLR 346 R v Park [2003] NSWCCA 142 Veen v The Queen (No 2) 164 CLR 465

COUNSEL: R Herps - Crown S Corish - (Forbes Chambers) - Applicant

SOLICITORS: S Kavanagh - (Solicitor for Public Prosecutions) S O'Connor - (Legan Aid Commission)

LOWER COURT FILE NUMBER(S): 06/11/0057 and 06/11/0058

IN THE COURT OF CRIMINAL APPEAL 2007/1121 CCAP

GILES JA JAMES J HISLOP J

Thursday 2 August 2007 Ersen CICEKDAG v REGINA Judgment

1 GILES JA: I agree with James J. 2 JAMES J: Ersen Cicekdag applied for leave to appeal against sentences imposed on him in the District Court by his Honour Judge Donovan on 29 September 2006. 3 The applicant had pleaded guilty to counts 2 to 8, 10 and 12 in an indictment presented against him and not guilty to counts 1, 9 and 11 in the indictment. The Crown accepted the pleas of guilty in full discharge of the indictment. The counts to which the applicant pleaded guilty and for which he was sentenced were a charge of receiving stolen property (count 2), six charges of obtaining a benefit by deception (counts 3 to 8), a charge of receiving stolen property (count 10) and a charge of driving a conveyance taken without consent (count 12). 4 Judge Donovan also sentenced the applicant for two offences alleged in court attendance notices, being an offence of aggravated dangerous driving occasioning grievous bodily harm and an offence of driving a motor vehicle without being licensed. 5 For the purposes of sentencing the applicant Judge Donovan divided the offences into groups. One group consisted of the offences charged in counts 2, 3, 4 and 5 and a second group consisted of the offences charged in counts 6, 7, 8 and 10. The offence of dangerous driving occasioning grievous bodily harm was taken separately. After his Honour had delivered his principal remarks on sentence, it came to his Honour's attention that he had omitted sentencing the applicant for the offence charged in count 12 of the indictment. His Honour then sentenced the applicant for the offence charged in count 12, in effect grouping it with the offence of dangerous driving occasioning grievous bodily harm. His Honour dealt separately with the offence of driving a motor vehicle while unlicensed. 6 The sentences imposed by his Honour were as follows:-

For each of the offences in the first group of offences his Honour imposed a sentence consisting of a non-parole period of eighteen months and a balance of the term of six months, each sentence commencing on 5 September 2005, the date of sentencing.

For each of the offences in the second group of offences his Honour also imposed a sentence consisting of a non-parole period of eighteen months and a balance of the term of six months, each sentence commencing on 5 March 2007. Accordingly, the sentences were fully accumulated on the non-parole periods of the sentences for the offences in the first group.

For the offence of aggravated dangerous driving occasioning grievous bodily harm his Honour imposed a sentence consisting of a non-parole period of two years and a balance of the term of one and a half years, the sentence commencing on 5 September 2008. Accordingly, the sentence was fully accumulated on the non-parole periods of the sentences for the offences in the second group. In sentencing the applicant for this offence his Honour took into account three additional offences, being an offence of possession of a small quantity of a prohibited drug and two offences of resisting a police officer in the execution of his duty.

For the offence of driving while unlicensed his Honour imposed a fine of $10 and ordered that the applicant be disqualified from driving for three years.

For the offence charged in count 12 of the indictment his Honour imposed a sentence of a non-parole period of one and a half years and a balance of the term of six months, the sentence commencing on 5 September 2008 and, accordingly, being wholly concurrent with part of the sentence for the offence of aggravated dangerous driving occasioning grievous bodily harm.

The total effect of the sentences of imprisonment imposed by his Honour was that the applicant was sentenced to head sentences totalling six and a half years and non-parole periods totalling five years. 7 Receiving stolen property is an offence under s 188 of the Crimes Act for which the maximum penalty is imprisonment for ten years. 8 Obtaining a benefit by deception is an offence under s 178BA of the Crimes Act, for which the maximum penalty is imprisonment for five years. In one part of his Honour's remarks on sentence he stated the maximum penalty for this kind of offence correctly, but in another part of his remarks his Honour said that the maximum penalty was imprisonment for ten years. 9 Driving a conveyance taken without consent is an offence under s 154A of the Crimes Act for which the maximum penalty is imprisonment for five years. 10 Aggravated dangerous driving occasioning grievous bodily harm is an offence under s 52A(4) of the Crimes Act for which the maximum penalty is imprisonment for eleven years. In his remarks on sentence his Honour incorrectly stated that the maximum penalty for this offence was imprisonment for five years. 11 In his submissions on this application counsel for the applicant drew the Court's attention to the misstatements by the sentencing judge of the maximum penalties for some of the offences but counsel did not challenge the sentences imposed on the ground that the maximum penalties had been misstated. The maximum penalty for the most serious offence, the offence of aggravated dangerous driving occasioning grievous bodily harm, was more than twice what his Honour said it was.

Facts of the offences 12 The facts of the various offences charged in the indictment can be briefly stated as follows:-

Count 2 - On 4 September 2005 a number of items were stolen from a house, including credit cards, mobile phones, a laptop computer and personal papers. When the applicant was arrested on the evening of 5 September 2005 he was found to be in possession of a number of the stolen items.

Count 3 - At 11.05pm on 4 September 2005 the applicant used one of the stolen credit cards to pay for sexual services at a brothel costing $132.

Count 4 - At 11.59pm on 4 September 2005 the applicant used the same stolen credit card to buy groceries costing $72.85 at a service station.

Count 5 - A few moments later the applicant used the same stolen credit card at the same service station to buy groceries costing $128.17.

Police retrieved close circuit television footage from the service station which clearly showed the applicant making the purchases referred to in counts 4 and 5.

Court 6 - At 12.08am on 5 September 2005 the applicant used the same stolen credit card to buy food and drink costing $12.10 at a McDonald's restaurant.

Count 7 - At 12.41am on 5 September 2005 the applicant used the same stolen credit card to buy goods costing $207.94 at a service station.

Count 8 - At 12.42am on 5 September 2005 the applicant used the same stolen credit card to buy goods costing $115.30 at the same service station.

Police retrieved close circuit television footage from the service station which clearly showed the applicant making the purchases referred to in counts 7 and 8.

Count 10 - On 5 September 2005 a number of items were stolen from a house, including keys to a Toyota motor vehicle. When the applicant was arrested later on 5 September 2005 he was found to be in possession of the keys.

Count 12 - The applicant used the stolen car keys to drive the Toyota motor vehicle. 13 The facts of the offence of aggravated dangerous driving occasioning grievous bodily harm can be briefly stated as follows. 14 The owner of the Toyota motor vehicle reported that the vehicle had been stolen. In the late evening of 5 September 2005 police in a police vehicle saw the applicant driving the Toyota. The police made a registration check, ascertained that the vehicle had been reported stolen and signalled to the applicant that he should stop. However, instead of stopping, the applicant accelerated and a police chase ensued. During this chase the applicant travelled at speeds of up to 80 kilometres an hour in areas where the speed limit was 50 kilometres an hour, the applicant failed to give way at intersections and the applicant drove in the wrong direction in a one-way street. 15 Eventually the Toyota collided heavily with the side of a vehicle being driven by Xu Xiao Hong, causing it to spin and mount the kerb. The impact of the collision caused the applicant to lose control of the Toyota vehicle, which slammed into a parked vehicle and then rolled a further forty metres. The Toyota vehicle burst into flames. 16 The applicant left the vehicle and was chased on foot by a police officer. The police officer caught the applicant but the applicant struggled violently and succeeded in freeing himself from the officer's grip. There was then a further chase on foot. The police officer caught the applicant and tackled him to the ground. Another police officer arrived and helped apprehend the applicant who was continuing to struggle. 17 The applicant's conduct in resisting the police officers gave rise to the additional offences of resisting a police officer in the execution of his duty. 18 After the applicant was arrested he was found to have in his possession a small quantity (.4 gram) of the drug "ice". The applicant's possession of this drug gave rise to another of the additional offences. 19 The driver of the other vehicle Xu Xiao Hong was taken to hospital and was found to have a fractured ankle.

Subjective features 20 The applicant was born on 1 January 1982 and was accordingly twenty-three years old at the time of committing the offences. His parents had migrated to Australia from Turkey before the applicant was born. The applicant's parents had separated when he was five years old and his mother had re-married. 21 The applicant left school at the age of fifteen and was employed for a time, until he became drug dependent. He was unemployed at the time of committing the offences. 22 The applicant began using drugs at the age of twelve. At the age of sixteen he began using heroin. At the time of committing the offences he was abusing alcohol, cannabis and methylamphetamine. He was also addicted to gambling. 23 The applicant had a lengthy criminal history, including convictions for armed robbery. At the time of committing the present offences he was on parole under a previous sentence. After committing the offences his parole was revoked, but on the grounds of his failing to obey reasonable directions given by his parole officer and not on the grounds of his having committed any of the present offences. Judge Donovan noted in his remarks on sentence that the balance of the parole would expire in May 2007.

Remarks on sentence 24 The sentencing judge devoted a substantial part of his remarks on sentence to a consideration of the applicant's mental state and particularly reports by Mr Taylor, a psychologist, and Dr Carne, a psychiatrist. 25 In October 2000 Dr Thomas Clark, a psychiatrist, had diagnosed the applicant as suffering from schizophrenia, which was partly masked or self-medicated by the applicant's use of heroin, and had recommended that he be treated with anti-psychotic medication. 26 In his report Mr Taylor expressed the opinion that the symptoms the applicant presented were more consistent with a drug-induced psychosis than with schizophrenia. If this was so, then, if the applicant's substance abuse could be reduced, the likelihood of the applicant re-offending would be greatly reduced. 27 In his report Dr Carne said that the applicant had told him that, when affected by drugs, he experienced auditory hallucinations and terrifying persecutory delusions. Dr Carne diagnosed the applicant as having a drug abuse/dependency and possible depressive episodes, a drug induced psychosis which was triggered by use of alcohol and prohibited drugs and an anti-social personality. At the time of committing the offences the applicant was not taking his prescribed medication and was self-medicating by using alcohol and prohibited drugs. 28 In his remarks on sentence the sentencing judge noted a concession by the Crown that the plea of guilty to the charge of aggravated dangerous driving occasioning grievous bodily harm had been entered at the earliest opportunity. The applicant had pleaded guilty to the charges involving dishonesty, only on the day set down for the trial of those charges. The sentencing judge did not quantify the amount of any discount he was allowing for the utilitarian value of the pleas of guilty. 29 His Honour found aggravating factors in the applicant's criminal history, which in his Honour's opinion made the principles stated by the High Court in Veen v The Queen (No.2) (1987-1988) 164 CLR 465 applicable, and in the offences having been committed while the applicant was on parole. 30 As regards mitigating factors, his Honour said that he would take into account the applicant's pleas of guilty. His Honour added "other possible mitigating factors are his mental disorder which is related at least in a significant part to his drug addiction and therefore the extent to which I can use it in his favour is limited". 31 When pronouncing his sentence for the dangerous driving offence his Honour said "I've varied the ratio of the parole and non-parole periods in the last matter, taking into account two factors, one, the mental condition of the offender and his need for rehabilitation and supervision and two, the fact that this is the last sentence following on a number of cumulative sentences".

Grounds of Appeal 32 The grounds of appeal against sentence were:- 1. The learned sentencing Judge erred in wholly accumulating the sentences imposed on the applicant. 2. The sentence is manifestly excessive in the circumstances and, in particular: a. The overall effective term is excessive. b. The effective non-parole period is excessive. c. The sentencing Judge erred in setting a sentence where the balance of the term exceeded one third of the non-parole period notwithstanding a finding of 'special circumstances'. 33 I will deal with these grounds of appeal in turn.

1. The sentencing Judge erred in wholly accumulating the sentences imposed on the applicant . 34 I have already set out the sentences imposed by the sentencing judge. His Honour made the sentences for the offences charged in counts 2, 3, 4 and 5 of the indictment fully concurrent with each other; his Honour made the sentences for the offences charged in counts 6, 7, 8 and 10 of the indictment fully concurrent with each other but fully cumulative on the non-parole periods of the sentences for the offences in the first group; and his Honour made the sentences for the offences of dangerous driving occasioning grievous bodily harm and driving a conveyance taken without consent concurrent with each other but fully cumulative on the non-parole periods of the sentences for the offences in the second group of offences. 35 There is undoubtedly some arbitrariness in the way in which the sentencing judge grouped the offences. Some grouping of the offences, when his Honour was sentencing for so many offences was unavoidable. However, some other method of grouping the offences might have been more logical. For example, his Honour could have treated the offence of receiving the stolen credit card separately, treated all the uses of the stolen credit card, whether on 4 September 2005 or 5 September 2005 as a single group of offences and treated all the offences relating to the Toyota motor vehicle as a single group of offences. It was suggested by the Crown that the offences could have been grouped, according to whether there had been an early or a late plea of guilty. However, it seems to me that it was open to his Honour to group the offences in the way in which he did. 36 Having divided the offences into only three groups and having made the sentences for all offences within a group fully concurrent with each other, it was necessary, in order that the applicant should be adequately punished, that the sentences for offences in the second and third groups be, at least partly, accumulated on the sentences for offences in the first group or the first and second groups. Whether the sentences should have been only partly accumulated, and not fully accumulated, depends on whether the sentences actually imposed by his Honour, considered overall, were excessive and this question raises the same issues as some of those raised by the second ground of appeal against sentence, to which I will now turn.

2. The sentence is manifestly excessive in the circumstances and, in particular: a. The overall effective term is excessive. b. The effective non-parole period is excessive. c. The sentencing Judge erred in setting a sentence where the balance of the term exceeded one third of the non-parole period notwithstanding a finding of 'special circumstances' 37 A specific complaint made by counsel for the applicant was that the sentencing judge had erred in saying that the applicant's "mental disorder… is related at least in a significant part to his drug addiction and therefore the extent to which I can use it in his favour is limited". 38 Counsel for the applicant disputed that a finding that the applicant's mental condition was "related to" his drug addiction amounted to a finding that the applicant's mental disorder was caused, at least in part, by his drug addiction. It was further submitted that if the sentencing judge's finding did amount to a finding that the applicant's mental disorder was caused at least in part by his drug addiction, then such a finding would not have been justified, because it was unclear on the evidence whether the applicant's mental disorder had been caused by his drug addiction. In support of this submission counsel referred to Dr Clark's opinion that the applicant was suffering from schizophrenia, which was partly masked or self-medicated by the applicant's use of heroin. It was further submitted that, even if the sentencing judge had found that the applicant's mental disorder was caused at least in part by his drug addiction and such a finding had been justified, the sentencing judge should not have limited the mitigating effect of the applicant's mental disorder, on the grounds that the mental disorder was caused at least in part by his drug addiction. 39 I do not consider that these submissions should be upheld. 40 I consider that the finding by the sentencing judge in his remarks on sentence, particularly when considered in the context of the whole of the remarks on sentence, was a finding by his Honour that the applicant's mental disorder was to a significant degree caused by his drug addiction. 41 Notwithstanding Dr Clark's opinion, there was other evidence before his Honour in the form of Mr Taylor's report and Dr Carne's report on which a finding could properly be made that the applicant's psychotic condition had been caused by the taking of drugs. As there was evidence on which the sentencing judge could make his finding, this Court as a court of error cannot interfere with the finding. See R v Park [2003] NSWCCA 142. 42 His Honour's statement to the effect that the extent to which he could take the applicant's mental disorder into account in favour of the applicant was limited, because the mental disorder was caused to a significant degree by the applicant's drug addiction, seems to me to be in accordance with principle. It has been said by this Court that persons who chose a course of addiction to drugs must be treated as choosing the consequences of such a course. See R v Henry (1999) 46 NSWLR 346 at 385 (198) per Spigelman CJ. A matter further reducing the extent to which the applicant's mental disorder could mitigate his criminality was that at the time of committing the offences the applicant was not taking his prescribed medication and was self-medicating by using alcohol and prohibited drugs. See Clay v Regina [2007] NSWCCA 106. 43 As regards par (a) of the second ground of appeal, I have already stated the objective facts of the offences and the subjective features of the applicant and I will not repeat them. Counsel for the applicant conceded that a total sentence of three and a half years for the most serious of the offences, the offence of aggravated dangerous driving causing grievous bodily harm, was within a proper exercise of his Honour's sentencing discretion. In my opinion, the imposition of head sentences totalling six and a half years for all of the offences was also within a proper exercise of his Honour's sentencing discretion. 44 As regards par (b) and par (c) of the second ground of appeal, it is obvious that the ground meant to be asserted in par (c) was, not that the sentencing judge erred in setting a sentence where the balance of the term exceeded one-third of the non-parole period, notwithstanding a finding of special circumstances, but that the sentencing judge erred in setting a sentence where the balance of the term was less than one-third of the non-parole period, notwithstanding a finding of special circumstances; and that the ground is intended to refer to the totality of the sentences and not any individual sentence. If par (c) is so understood, pars (b) and (c) of the second ground of appeal can conveniently be dealt with together. 45 I have already quoted the remark made by the sentencing judge in his remarks on sentence, in pronouncing the sentence for the dangerous driving offence, that:- " I varied the ratio of the parole and non-parole periods in the last matter taking into account two factors, one, the mental condition of the offender and his need for rehabilitation and supervision and two, the fact that this is the last sentence following on a number of cumulative sentences ". 46 It is true that in the sentence for the dangerous driving offence the sentencing judge did vary the usual ratio between the non-parole period of a sentence and the balance of the term, so that the balance of the term exceeded one-third of the non-parole period. However, when all the sentences are taken into account, the total head sentences are six and a half years and the total non-parole periods are five years, so that the total period during which the applicant would be eligible for release on parole does not exceed one-third of the total non-parole periods and is, in fact, slightly less than one-third of the total non-parole periods. 47 It was submitted by counsel for the applicant that, when all the sentences were taken into account, the sentencing judge had failed to carry into effect an intention to vary the usual ratio between non-parole periods and balances of terms, so as to take into account both of the two factors the sentencing judge had identified as requiring such a variation, namely the applicant's mental condition and the consequent need for rehabilitation and supervision, and the accumulation of sentences. 48 In my opinion, this submission by counsel for the applicant should be upheld. 49 If the only factor identified by the sentencing judge as requiring a variation of the usual ratio had been the accumulation of sentences, then the imposition of a collection of sentences in which the total parole period was only slightly less than one-third of the total of the non-parole periods might well have been regarded as a sufficient implementation of his Honour's sentencing intention. However, his Honour also identified as a factor requiring a variation of the usual ratio the applicant's mental condition and his consequent need for rehabilitation and supervision and the sentences imposed by his Honour, when considered in their totality, did not make any allowance for this factor. 50 In my opinion, sentences should be imposed on the applicant such that the total non-parole periods would be four and a half years, that is, just under 70 per cent of the total sentences. This result can be achieved by reducing the non-parole period for the dangerous driving offence from two years to one and a half years. 51 I consider that the following orders should be made:-

Leave to appeal against the sentences imposed on 29 September 2006 granted.

Appeal against sentence for the offence of aggravated dangerous driving causing grievous bodily harm allowed.

Sentence for the offence of aggravated dangerous driving causing grievous bodily harm quashed.

In lieu thereof, the applicant should be sentenced to a non-parole period of one and a half years commencing on 5 September 2008 and a balance of the term of two years.

The earliest date on which the applicant will be eligible for release on parole will be 4 March 2010.

Otherwise, sentences imposed on 29 September 2006 confirmed. 52 HISLOP J: I agree with James J. **********

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