Dagdanasar v R

Court of Criminal Appeal (NSW)|2010-12-03|Before: Hislop J, Price J, McClellan CJ, Clellan CJ

JUDGMENT OF: McClellan CJatCL at 1; Hislop J at 2; Price J at 3

DECISION: 1. Leave to appeal against sentence be granted. 2. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - sentencing - offence contrary to s 154A(1)(b) Crimes Act 1900 - whether error in assessment of objective seriousness of offence - whether value of motor vehicle driven by offender was relevant - whether error in failure by sentencing judge to refer to possibility of summary disposal - whether sentence manifestly excessive

Crimes Act 1900 s 33B(1)(a), 154A(1)(a), 154A(1)(b) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 44(2) Criminal Procedure Act 1986 s 166 Road Transport (Safety and Traffic Management) Act 1999 s 42(2)

Georgopolous v R [2010] NSWCCA 246 House v The King (1936) 55 CLR 499 Markarian v R (2005) 228 CLR 357 Mulato v R [2006] NSWCCA 282 Pearce v R (1998) 194 CLR 610 CASES CITED : R v El Masri [2005] NSWCCA 167 R v Johnson [2004] NSWCCA 140 R v McNaughton [2006] NSWCCA 242 R v Palmer [2005] NSWCCA 349 R v Way (2004) 60 NSWLR 168 Wise v R [2006] NSWCCA 264

PARTIES: Mustafa Dagdanasar Crown

COUNSEL: M Coroneos (Applicant) D Arnott SC (Crown)

SOLICITORS: Hanby & Associates, Lawyers (Applicant) Solicitor for Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2008/17482

McClellan CJ at CL Hislop J Price J

16 December 2010 Dagdanasar v R Judgment 1 McCLELLAN CJ at CL: I agree with Price J.

3 PRICE J: The applicant Mustafa Dagdanasar pleaded not guilty in the District Court to the first count on an indictment being an offence of using an offensive instrument with intent to prevent lawful apprehension contrary to s 33B(1)(a) Crimes Act 1900 but guilty to the second count being an offence of knowingly driving a conveyance without the consent of the owner contrary to s 154A(1)(b) Crimes Act. The offences were alleged to have occurred on 12 May 2008. Both pleas were entered in front of a jury on the first day that had been set down for trial. The jury returned a verdict of not guilty to the first count.

4 The applicant came to be sentenced on count 2 on 11 September 2009. He was also sentenced for two offences contained in a certificate pursuant to s 166 Criminal Procedure Act 1986. They were "related offences" having been committed on 12 May 2008.

5 The first offence was a charge of driving in a manner dangerous to the public contrary to s 42(2) Road Transport (Safety and Traffic Management) Act 1999. The second offence was a charge of driving whilst disqualified.

6 On the charge of driving in a manner dangerous to the public, a fixed term of imprisonment of 9 months to commence on 11 February 2009 and to expire on 10 November 2009 was imposed. The maximum penalty for this offence is imprisonment for 12 months. On the charge of driving whilst disqualified, the applicant was sentenced to a fixed term of imprisonment of 18 months commencing 11 August 2009 and expiring 10 February 2011. The maximum penalty for this offence is imprisonment for 2 years.

7 On count 2 (driving a conveyance without consent), a sentence of imprisonment with a non-parole period of 2 years commencing on 11 February 2010 and expiring on 10 February 2012 with a balance of term of 18 months expiring on 10 August 2013 was imposed. The maximum penalty for the offence is imprisonment for 5 years.

8 As a result of accumulation and concurrence, the total effective sentence is imprisonment with a non-parole period of 3 years commencing 11 February 2009 and expiring 10 February 2012 with a balance of term of 18 months expiring 10 August 2013. The earliest date the applicant is eligible for release on parole is 10 February 2012.

9 The sentencing judge disqualified the applicant from driving until 18 May 2025.

10 The applicant now seeks leave to appeal against the sentence imposed. The notice of appeal identifies the following grounds: "1. The sentencing Judge erred in not giving the applicant a discount for his pleas of guilty to the first and second offences on the section 166 certificate;

The sentencing Judge erred in his assessment of the objective seriousness of the second count;

The sentencing Judge erred in not taking into account that the second count is usually dealt with in the Local Court;

The sentencing Judge erred in not having regard to parity between the co-offenders for the second count;

The sentence imposed for the second count is manifestly excessive." Ground 4 of the appeal was abandoned in this Court.

11 The facts of the offences were not in dispute and were summarised by the sentencing judge as follows (AB 10-13): "At approximately 5pm on Monday 12 May 2008 police were on duty in an unmarked police vehicle at the intersection of Marlborough and Cleveland Street, Surry Hills. They saw a grey Toyota Kluger four-wheel drive driving west along Cleveland Street at high speed. They followed it as it turned right into Walker Street and saw it driving in a reckless fashion there. They checked the status of the vehicle and found it had been reported as stolen from Auburn on 24 April 2008. In the vehicle were the offender, a front seat passenger, Roopi Lunkka, and two rear seat passengers, Joshua Fynn and an unidentified woman. The vehicle continued to the corner of Walker and Belvoir Streets, Surry Hills and at this point a woman was seen to leave the vehicle from the rear passenger seat. One of the police left the police vehicle, which at this stage had police warning devices activated, and walked towards the Kluger. As he did so, it accelerated and drove at a high speed down Belvoir Street and turned left on to Elizabeth Street and then right on to Walker Street, travelling against the flow of traffic in a one way street. It then turned right into Young Street and then into Marriot Street where it reduced speed due to traffic at the corner of Cleveland and Young Streets. It became boxed in by traffic in the lanes on either side and ahead of it and was forced to remain stationary. The police vehicle was able to stop a car length in front of it in the adjacent right lane. A policeman got out of the police vehicle which still had police lights and sirens activated. Another also exited the vehicle and went to the driver's door of the Kluger in an attempt to make the driver, the present offender, exit the vehicle.

At this point the traffic lights ahead changed to green and as the traffic ahead of both vehicles began to move the offender was able to accelerate through a gap in the traffic ahead of the police vehicle at an angle which caused one of the policemen, Detective Reid, to become caught between the Kluger and the police vehicle. The offender continued driving and in so doing caused Detective Reid to slide along between the two cars. Fearing that Detective Reid would remain pinned between the two cars, another detective, Detective Buttel, discharged one round from his firearm towards the driver of the Kluger. After the shot was fired the Kluger accelerated through the widening gap created by the parting traffic near the both [sic] vehicles and in doing so released Detective Reid. It then accelerated and police activated a pursuit. It drove west along Cleveland Street and Henderson Road, then turned right into Copeland Street where it began to drive on the wrong side of the road. Police terminated the pursuit due to danger to other traffic. Shortly afterwards a marked police vehicle occupied by officers Peebles and Winkler was travelling along Wilson Street in the direction of the Kluger, which was driving towards the marked police vehicle when the driver lost control. It slid on to the wrong side of the road and collided with the front near side of the police vehicle. The Kluger was able to continue driving along Wilson Street and then turned left into Forbes Street. Another marked police vehicle joined the pursuit as the Kluger continued west along King Street towards Newtown, right on to Missenden Road and left on to Parramatta Road heading west. It was driving at high speed and began weaving in a dangerous fashion among oncoming traffic. It also mounted the gutter while driving at a high speed through peak hour traffic in it's continued efforts to escape police. The Kluger then turned left on to Shaftsbury Road, Burwood then right on to Wilga Road, right again on to Burwood Road and left back on to Parramatta Road. At the intersection of Parramatta Road and Moseley Street it collided with the rear of a silver hatchback belonging to [RM]. It came to a stop on Parramatta Road, at which point the driver, the present offender, and the back seat passenger, Joshua Fynn ran from the vehicle on to Franklin Street and into units on Ada Street. The front seat passenger... remained in the front seat of the Kluger and was arrested while police followed the offender through the grounds of the unit block where he was arrested at gunpoint."

12 The agreed facts disclosed that the Toyota Kluger was reported stolen on 25 April 2008. The owner was leaving home for work at 4am and had left the keys in the vehicle with the ignition on whilst he re-parked another vehicle. He saw a person run towards the vehicle and drive it away. The owner suffered a total loss of $5,283.30 which included the balance between the amount paid for the vehicle approximately two months earlier and the amount that he was compensated by the insurer. Damage was also sustained to the two police vehicles, the first, a 2006 Ford Futura, suffered damage amounting to $1,418.72 and the second, a 2008 Holden Commodore sustained damage amounting to $7,670.43. The silver hatchback was also damaged and was towed to a holding yard at a cost of $439.82, then to the insurance company which paid $220 for the vehicle to be destroyed.

13 The applicant was born in March 1981 and was 28 years old at the time of sentence. Evidence of the applicant's subjective circumstances was before the sentencing judge by the tender of a report from W. John Taylor, a psychologist and a Probation and Parole pre-sentence report. The applicant did not give evidence during the proceedings on sentence. 14 During the sentencing remarks, his Honour referred to the tendered reports in some detail. When referring to the pre-sentence report he observed that the applicant has a supportive family and is married with one child although the marriage had broken up. He had been known to the Probation and Parole Service since 1999 in relation to the supervision for many bonds.

15 His Honour noted that the applicant reported being involved in an accident as a child and said that as a result he believed the applicant has a mild prior brain injury. The sentencing proceedings had been previously adjourned to enable a neuro-psychological report to be obtained but it had not been and the applicant elected to be sentenced without it. His Honour said he could not make any positive finding as to brain damage or its role in the applicant's offending.

16 When referring to Mr Taylor's report, his Honour noted the psychologist's assessment that the applicant has a mild intellectual handicap with an IQ of sixty-five, which was better than only one per cent of the population of people his own age. The applicant, his Honour recounted, was "described as having a personality disorder with some anti-social characteristics and some characteristics of an immature and inadequate personality adjustment". His Honour also observed that the applicant had admitted use of cocaine at the time of the present offences. The applicant, his Honour noted, had told the psychologist that he wanted to reconcile his relationship with his wife and resolve his substance abuse.

17 The applicant's criminal history as an adult reveals a lengthy prior record that includes convictions for offences of break enter and steal, assault occasioning actual bodily harm, receiving stolen property and contraventions of apprehended domestic violence orders. His record for matters dealt with in the Children's Court includes offences of stealing a motor vehicle, taking and driving a conveyance and being carried in a conveyance without the consent of the owner.

18 On 17 May 2007, the applicant was sentenced in the District Court for the offence of use an offensive weapon with intent to commit an indictable offence to a term of imprisonment of 2 years 6 months with a non-parole period of 12 months commencing 21 March 2007 and expiring 20 March 2008. It is an aggravating factor that the present offences were committed whilst the applicant was on parole for this offence.

19 The applicant has an unattractive traffic record. His many offences include convictions for unlicensed driving, driving whilst disqualified and driving in a manner dangerous. At the time of the commission of the present offences, he was disqualified from driving until May 2013.

20 The applicant's parole was revoked by the State Parole Authority and the balance of parole was to expire on 20 September 2009. Taking into account that the parole had been revoked by reason of the present offences, his Honour backdated the sentences by seven months to commence on 11 February 2009.

Some findings of fact by the sentencing judge 21 For the purpose of sentence, the sentencing judge found: a) The offence of driving in a manner dangerous to the public (charge 1) was "high range but not at the top of the range" of objective seriousness. b) The offence of driving a conveyance without the consent of the owner (count 2) was "slightly above the mid range of offending of its type." c) The applicant had "moderate or guarded prospects of rehabilitation and of not re-offending, depending on the outcome of programmes he receives." d) A fifteen per cent deduction for the pleas of guilty was appropriate to all the offences. e) The three offences arose out of the same episode of criminal conduct. His Honour "provided for a degree of partial accumulation between the offences and some degree of concurrency on that account."

22 Special circumstances, being the applicant's "need...to address his drug dependency issues through suitable programmes", were found permitting an adjustment to the statutory ratio between the non-parole period and balance of term: s 44(2) Crimes (Sentencing Procedure) Act 1999.

Dealing with the appeal Ground 1: The sentencing judge erred in not giving the applicant a discount for his pleas of guilty to the first and second offences on the section 166 certificate. 23 The applicant pointed out that the fixed terms of imprisonment for the first and second offences on the s 166 certificate were three quarters of the maximum penalty for each offence. He submitted that it was evident that the sentencing judge had adopted the conventional practice of imposing fixed terms of imprisonment that represented the non-parole period of the total sentence because there was no practical utility in setting a parole period as a result of the sentence accumulation. The applicant argued that it followed that the sentencing judge had not applied the 15 per cent reduction for the pleas of guilty. The undiscounted starting points for the first offence should accordingly have been approximately 10 months for the first offence and approximately 20 months for the second offence.

24 There is no merit in this ground of appeal. His Honour applied the 15 per cent discount not to the individual sentences but to the aggregate overall sentence. As the Crown demonstrated by the arithmetic in its written submissions, whether this approach was taken or a discount was applied to the sentences individually, the ultimate result was the same. I would reject this ground of appeal.

Ground 2: The sentencing judge erred in his assessment of the objective seriousness of the second count.

25 The asserted error was the sentencing judge's assessment that the offence of driving a conveyance without consent (count 2) was slightly above the mid-range of objective seriousness for such an offence. The applicant pointed to his Honour's indication during the sentencing hearing that he had reached the conclusion that the offence was slightly below the mid-range which was inconsistent with the ultimate finding.

26 Before venturing further, I would emphasise that an analysis of where the offence lay on the range of objective seriousness of an offence contrary to s 154A(1) in accordance with the principles in R v Way (2004) 60 NSWLR 168 was not required, as a standard non-parole period has not been prescribed for this offence. In my respectful opinion, the sentencing judge's findings that the offence was slightly above the mid-range was unnecessary. In Georgopolous v R [2010] NSWCCA 246, Howie AJ said at [30]: "Because the offence did not carry a standard non-parole period, it was unnecessary for his Honour to embark upon a detailed finding as to where the offence lay in relation to a mid range of objective seriousness for an offence of this type. It is likely to lead to confusion and misinterpretation when the offence does not carry a standard non-parole period." 27 Whilst it is true that the sentencing judge said in his discussions with counsel, that he regarded the offence of "drive without consent...as slightly below the mid range", he went on to say that he proposed a sentence for that offence of imprisonment of 3 years 6 months with a non-parole period of 2 years, which was the sentence ultimately imposed. This suggests that his Honour may have made an inadvertent slip when he spoke of the offence being slightly below the mid-range. In any event, I do not think it matters as the sentencing judge's conclusions are to be found in his remarks on sentence and not in discussions with counsel. Rothman J (with whom Spigelman CJ and Howie J agreed) said in Wise v R [2006] NSWCCA 264 at [27]: "Exchanges between counsel and judge, or the use of an expression by a judge in the course of a trial or hearing, do not represent a final view, do not represent a fully considered view and seek only information or a proper understanding of the issues or submissions made for the purpose of them being considered in any final judgment: R v Pham [2005] NSWCCA 94; R v Millar [2005] NSWCCA 202."

28 The next contention was that s 154A(1) Crimes Act creates two classes of offences. The applicant was charged under s 154A(1)(b) with knowingly driving a vehicle without consent which the applicant argued, must be objectively less serious than the "larceny like" conduct of the different types of offending in s 154A(1)(a). The applicant submitted that his offence was at the lower end of the range of objective seriousness for an offence contrary to s 154A(1). 29 Section 154A(1) is as follows: "(1) Any person who:

(a) without having the consent of the owner or person in lawful possession of a conveyance, takes and drives it, or takes it for the purpose of driving it, or secreting it, or obtaining a reward for its restoration or pretended restoration, or for any other fraudulent purpose, or (b) knowing that any conveyance has been taken without such consent, drives it or allows himself or herself to be carried in or on it,

shall be deemed to be guilty of larceny and liable to be indicted for that offence."

30 Section 154A(1) does not mandate that an offence of taking and driving a conveyance without the consent of the owner is to be regarded as more serious than an offence of driving a vehicle knowing that it has been taken without the owner's consent. Offences contrary to s 154A(1)(a) and s 154(1)(b) are deemed to be larceny and have the same maximum penalty which suggests that the legislature did not invite a distinction being necessarily made between the seriousness of the crimes committed against either sub-section. An evaluation of the seriousness of an offence contrary to s 154A(1) does not depend upon the sub-section under which it is charged but upon all of the circumstances of the offending.

31 A focus of the applicant's criticism of the sentencing judge's assessment of the objective seriousness of the second count was the following passage in the sentencing remarks (AB 20): "The Crown submitted that the offence of driving a conveyance without the consent of the owner was mid-range, given the value of the vehicle, being a recent model Toyota Kluger Four Wheel Drive as shown in the video I saw during the trial. I agree that the vehicle does appear to be a recent model and probably quite valuable, although I have no evidence of its precise value, but because the offender was not charged on the basis that he took the vehicle, and did not plead guilty on that basis, and taking that fact into account alongside the apparent value of the vehicle, I think that a proper finding is that this offence is slightly above the mid-range of offending of its type."

32 The applicant submitted that the sentencing judge had only indicated two matters that he took into account in assessing the objective seriousness of the second count. The applicant argued that the lack of an allegation that he took the vehicle must have lowered the objective seriousness of the offence. Furthermore, the applicant contended that the vehicle's value was more properly a relevant factor to be taken into account where an offender has taken the vehicle but, if relevant to the present offence, must assume less significance than in the case of taking a vehicle.

33 The value of property the subject of a larceny has always been a relevant consideration in the assessment of the objective seriousness of that crime. It seems to me that the value of the motor vehicle is a relevant consideration in the assessment of the objective seriousness of a deemed larceny under either of the sub-sections of s 154A(1). A deemed larceny under s 154A(1)(b) that is committed by the driving of a motor vehicle is in many cases motivated by the make and model of the vehicle unlawfully driven. I would reject the applicant's contention that the value of the Toyota Kluger has no or little relevance in the assessment of the objective seriousness of the present offence.

34 There is another matter that, in my view, enhances the gravity of the second count. The applicant paid no regard to the fact that the vehicle he was driving was another person's property and the damage to it was substantial. The applicant is not being punished here for the first offence, which is concerned with the actual or potential danger to the public occasioned by the manner of driving, but for the extent of his disregard for the property of another.

35 The applicant was critical of the sentencing judge's assessment of the value of the motor vehicle. It was submitted that the Toyota Kluger might have been older and far less valuable than it appeared to the sentencing judge on the video. His Honour furthermore did not indicate what value he had ascribed to the vehicle. I reject this submission. The sentencing judge was not obliged to assign a value to the vehicle. He had presided during the trial and had seen the video. He was entitled to form the view that the vehicle was "probably quite valuable."

36 A determination of where the subject offence lies on the scale of objective seriousness of an offence of its type is essentially one of fact and as such is reviewable in this Court only on the principles stated in House v The King (1936) 55 CLR 499, see R v Johnson [2004] NSWCCA 140; Mulato v R [2006] NSWCCA 282. The question is whether or not the determination of the offence as being slightly above the mid-range was open to the sentencing judge in the circumstances of the offence: Johnson per Spigelman CJ at [34]. I am not persuaded that wrong principle has been applied, or an irrelevant consideration has been taken into account (or a relevant consideration has been overlooked) or that the finding itself simply was not open on the evidence: House v The King.

Ground 3: The sentencing judge erred in not taking into account that the second count is usually dealt with in the Local Court.

38 The applicant complained that the sentencing judge erred in not taking into account as a matter of mitigation that an offence contrary to s 154A(1)(b) Crimes Act could have been dealt with in the Local Court with a maximum penalty of 2 years imprisonment and referred to the principles expressed in R v Palmer [2005] NSWCCA 349. The applicant submitted that the failure by the sentencing judge to make reference to summary disposal in his remarks on sentence was indicative of error.

39 An offence contrary to s 154A(1) is a Table 2 offence under the Criminal Procedure Act and is to be dealt with in the Local Court unless the prosecutor elects for a trial on indictment. The maximum penalty that can be imposed in the Local Court is 2 years imprisonment or 50 penalty units or both. During the proceedings on sentence, the sentencing judge was informed that the offence was commonly dealt with in the Local Court.

40 It is unsurprising that the sentencing judge did not mention that the offence could have been dealt with summarily. The objective seriousness of the offence, the criminal record of the applicant and the fact that it was committed in breach of parole all called for a sentence in excess of two years. The applicant was not entitled, in my opinion, to any weight being given to the loss of chance of summary disposition. In R EI Masri [2005] NSWCCA 167, Johnson J (with whom Hunt AJA and Hulme J agreed) said at [29]: "It is a well-established sentencing principle that a court dealing on indictment with a matter which was capable of summary disposal may have regard to that fact on sentence: R v Sandford (1994) 72 A Crim R 160 at 195; R v Griggs (1999) 109 A Crim R 484 at 485-6; Crombie, at paragraph 16; Doan, at 123ff (paragraph 35ff); R v LPY (2002) 135 A Crim R 237 at 240. But it is not a universal rule (Sandford, at 195) nor a factor which operates universally to reduce sentence (Doan, at 124). In some circumstances, the Court may conclude that the offender's criminality was too serious to be dealt with in the Local Court and that the matter was properly before the District Court: R v Hanslow [2004] NSWCCA 163 at paragraph 21. The significance of the loss of a chance to be dealt with in the Local Court will vary from case to case: R v Depoma [2003] NSWCCA 382 at paragraph 13."

41 In Palmer, when discussing the principles relevant to the possibility of summary disposal, Hall J (with whom Grove J and Smart J agreed) said at [15]: "(a) The first is that a judge in the District Court is not bound by the jurisdictional limit imposed on the Local Court when dealing with an offence on indictment which was capable of summary disposal, but may have regard to that limit when the case is one which could appropriately have been disposed of in the Local Court: R v Crombie [1999] NSWCCA 297 at [16]; R v LPY (2002) 136 A. Crim. R 237 at 240 and R v El Masri [2005] NSWCCA 167 at [30]." 42 The offence could not have been appropriately disposed of in the Local Court. I do not consider in the present case that the sentencing judge's failure to make reference to the fact that the offence could have been dealt with in the Local Court in his sentencing remarks indicates that his Honour erred. I would reject this ground of appeal.

Ground 5: The sentence imposed for the second count is manifestly excessive.

43 The applicant's complaint of manifest excess was confined to the sentence for the second count and reliance was placed upon statistical information from the Judicial Commission. To establish this ground of appeal, the applicant must demonstrate that the sentence was manifestly excessive in the sense of being unreasonable or plainly unjust: Markarian v R (2005) 228 CLR 357. Each case must be considered in the light of its own facts. No two cases are the same and there is no single correct sentence: Pearce v R (1998) 194 CLR 610.

44 Included in the statistical material were sentences imposed in higher courts for "non-parole period/fixed terms - non-consecutive terms only" for offences contrary to s 154A(1) where pleas of guilty were entered. These statistics indicate in 50 per cent of cases a non-parole period/fixed term of 12 months was set. In 25 per cent, the non-parole period/fixed term was 18 months and 36 months in 8 per cent of cases. The statistics are founded upon 12 cases and do not distinguish between offences against s 154A(1)(a) or s 154A(1)(b). I observe that the effective non-parole period set by his Honour for count 2 was about 12 months.

45 In the applicant's case, an aggravating factor is that the offences were committed whilst he was subject to conditional liberty. He had been released to parole only one month and three weeks previously. Furthermore, the sentencing judge was entitled to give more weight to considerations of personal deterrence and protection of the community because of the applicant's prior offending: R v McNaughton [2006] NSWCCA 242.

46 I am not persuaded that the sentence for count 2 was outside a legitimate exercise of his Honour's sentencing discretion. I would reject this ground of appeal.

47 The orders I propose are as follows: 1. Leave to appeal against sentence be granted. 2. Appeal dismissed.

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