DPP v Yildirim [2011] VSCA 219

1. On 3 November 2010, the respondent pleaded guilty to two counts of sexual penetration of a 16-year-old child under his care, supervision or authority contrary to s 48(1) of the Crimes Act 1958 ('the Act').
2. On 17 December 2010, he received a total effective sentence of four years and six months' imprisonment with a non-parole period of two years and six months' imprisonment. The maximum penalty for an offence under s 48(1) is ten years' imprisonment. The respondent was also registered as a serious sex offender for 15 years.
3. The Crown now appeals his sentence on two grounds. First, the sentence imposed in respect of each count, and as a totality, as well as the non-parole period fixed by the sentencing judge were manifestly inadequate. Second, the sentencing judge erroneously took into consideration the prospect that the respondent might be deported at the conclusion of his term of imprisonment.

1. The respondent is a Turkish national. He was 26 at the time he committed the offences. He is now 27. Although he came to Australia in 2006 on a student visa, he resided in Australia on a skilled migration visa at the time of these offences. The respondent qualified in industrial electronics in Turkey, but despite completing an advanced diploma of hospitality management in Australia in 2009, he has only been able to obtain limited employment since he arrived here in 2006.
2. The respondent has no criminal history in Australia or Turkey nor does he have any substance abuse problems. He has a stable family background and a supportive fiancée whom he met in Australia and intends to marry in the immediate future.
3. After his arrest, he was subjected to a psychological assessment on 15 and 26 November 2010. He was observed to be:

an intelligent and high functioning man who normally exercises good judgment. He demonstrated a high degree of insight into his psychological functioning and some insight into his offending behaviour. He presented with a history of pro-social behaviour and lifestyle. He possesses clear consequential thinking and the capacity to plan and execute positive and self sustaining behaviour.

1. The respondent did not meet the diagnostic criteria for paedophilia, was assessed as presenting a low risk of recidivism and would be 'readily and easily managed in the community'.

1. On 11 July 2010, the respondent was working as a loss prevention officer at Coles Knox City Shopping Centre. At 2.45 pm, he observed the 16-year-old complainant shoplifting a can of deodorant.
2. After she had left the store with her friend, he accosted her and demanded that she return to the store with him alone. The respondent took the complainant to the rear manager's office and asked her what she could offer him in return for not calling the police to report her attempted theft. The respondent told the complainant that a report to the police would ruin her chance of having a career or taking out a loan.
3. After the complainant asked the respondent what people usually offered him in situations of this type, the respondent told the complainant that, 'some of the girls offer me blow jobs and sex'. She answered, 'Oh, is that what you want from me?' He answered, 'If you want to get out of this, yes'.
4. The respondent accompanied the complaint to the disabled toilets on the second floor of the shopping centre. Once inside the toilet cubicle, the respondent said to the complainant, 'Give me a blow job'. The complainant got down on to her knees and he placed his penis inside her mouth for ten seconds before the complainant told him that she did not want to do this, (Count 1, first instance).
5. The respondent then instructed the complainant to take off her pants and lie down on the floor. She obeyed and he lay on top of her and partially inserted his penis into her vagina twice before she said, 'I can't do this', (Count 2, first instance).
6. The respondent then stood up and said, 'Fine, just give me a blow job then'. The complainant performed fellatio on the respondent before again saying that she did not want to do this, (Count 1, second instance). She was once again instructed to lie on the floor. The respondent inserted his penis into her vagina. He thrust in and out of her ten times before he pulled his penis out of her vagina and ejaculated on to the floor, (Count 2, second instance).
7. After making the complainant wait until he got dressed and telling her that she was not to tell anyone because, 'If she did so she would be seen as being in the wrong', the respondent let her leave the toilet.
8. All together, the respondent and the complainant were in the toilet for nine minutes.
9. The respondent was arrested that same day, 11 July 2010, and charged with the two counts for which he has been convicted. Those counts are rolled up counts. The first encompasses two acts of penile-oral penetration, the second count encompasses two acts of penile-vaginal penetration. The respondent pleaded guilty at the committal hearing on 3 November 2010.

1. Recently, this Court considered the principles which informed both the Director's decision to bring an appeal pursuant to s 287 of the Criminal Procedure Act 2009 (Vic), and the approach mandated by the same legislation to the disposal of such appeals, in the matter of DPP v Karazisis.[1] In their reasons, the majority held that despite the removal of the double jeopardy principle from the Court's consideration of such an appeal, the principles discussed in both R v Clarke[2] and DPP v Bright[3] continued to inform the director's decision whether to commence an appeal against sentence. Relevantly for ground 1, it is important to reiterate that such an appeal:

should not be brought unless the sentence reveals such "manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle" ... manifest inadequacy alone will not be sufficient to warrant appellate intervention. Something more is required to ensure that prosecution appeals do not unduly circumscribe the sentencing discretion of judges. The inadequacy of the sentence must be "clear and egregious", the sentence being so disproportionate to the seriousness of the crime as to shock the public conscience and "undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes".[4]

18 As the majority emphasised in Karazisis, 'the ground of manifest inadequacy is a stringent one, difficult to make good,' and will only succeed where the Director persuades the Court that the sentence imposed was '"wholly outside the range of sentencing options available" to the sentencing judge.'[5]

1. In my view, the respondent's sentence did not fall outside the range available to the sentencing judge wholly or otherwise. The respondent pleaded guilty to the offence for which he has been convicted. The learned sentencing judge indicated that but for his plea of guilty he would have received a sentence of six years and six months' imprisonment. As already noted, the respondent was of good character, relatively youthful, had no prior convictions, and was assessed as having good prospects of rehabilitation. His offending involved a single course of opportunistic conduct of short duration.
2. Whilst his behaviour was coercive and exploitative and is to be condemned, it was not preceded by a period of grooming or a long period of premeditation. Furthermore, the position of authority which the respondent exploited in order to commit the acts for which he has been convicted, whilst it conferred a right on him to detain the complainant, was not a position of significant trust and responsibility within the community.
3. As part of counsel's submissions, the director has not advanced a sentencing range which he says would have been an adequate substitute for that actually received by the respondent. At first instance, counsel for the prosecution suggested that an appropriate total effective sentence would be six to eight years' imprisonment with a non-parole period of four to six years'. The director is presumed to maintain this position, and so much could be gleaned from submissions by counsel on his behalf.
4. Were the suggested sentence advanced below to be accepted, it would leave little or no scope for an appropriate sentence for an offender who had contested the charge and lacked the mitigatory factors which operate in the respondent's favour.
5. The Director also made a number of criticisms of the learned sentencing judge's reasons for sentence under this ground. These criticisms purport to identify particular failures on the part of the judge when fashioning an appropriate sentence through which her Honour was said to be led into error. An assertion that a sentence is manifestly inadequate is not an assertion that the sentence suffers from identifiable error, but an assertion that such error can be inferred from the sentence itself. Consequently, it is unnecessary to address the criticism.
6. In my view ground 1 must be dismissed.

Ground 2 - Weight erroneously given to the prospect of the Respondent's deportation upon release

1. The Director also contends that the sentencing judge erred by taking into account the prospect of the respondent's deportation upon release without sufficient evidence of the likelihood of that risk eventuating and of the actual hardship that would be incurred if it did.

26 In Guden v The Queen,[6] this Court considered both the evidence required to establish that a risk of deportation upon release from custody was a relevant sentencing consideration, and how it ought to be synthesised into the sentencing process once that the Court was satisfied that such deportation was not merely a speculative possibility. The Court concluded that:

the prospect of an offender's deportation is [not] an irrelevant consideration in the sentencing process. As a matter of principle, the converse must be true. Like so many other factors personal to an offender which conventionally fall for consideration, the prospect of deportation is a factor which may bear on the impact which a sentence of imprisonment will have on the offender, both during the currency of the incarceration and upon his/her release.[7]

It follows that, subject always to the state of the evidence before the sentencing court, the prospect of deportation of the offender is a proper matter for consideration in determining an appropriate sentence.[8]

27 However, the Court was careful to emphasise that evidence must be led to establish the quantum of this risk eventuating for it to be properly considered by the sentencing judge:

Of course, as this Court made clear in Griffiths,[9] the sentencing court cannot be asked to speculate. If defence counsel on a plea in mitigation can say no more than that a term of imprisonment of more than 12 months will, upon its expiry, enliven the power of the Minister for Immigration either to revoke an existing visa or to decline to renew one, then deportation may properly be viewed - as in Griffiths - as 'a completely speculative possibility'.

What Nettle JA said in R v Tabone,[10] in relation to the comparable question of the risk of confiscation of property following a conviction, applies with equal force here. That is, in the absence of evidence or an appropriate concession by the Crown, there will be no error in a judge declining to take into account the possibility of deportation. Indeed, in order properly to assess the weight to be given in any particular case to a risk of deportation, evidence would be required sufficient to permit a sensible quantification of that risk to be undertaken. It would also be necessary for a prisoner to demonstrate that deportation in his/her case would in fact be a hardship.[11]

28 During the plea hearing, counsel for the Respondent asserted that his client's immigration status was 'a matter of significance' to the sentencing process. In particular, he drew attention to s 501 of the Migration Act 1958 (Cth), whose operation was said to create a risk of deportation, which risk increased the more his sentence exceeded a period of twelve months' imprisonment.[12]

29 As the Court stated in Guden, the sentencing judge 'cannot be asked to speculate' on the likelihood that incarceration exceeding twelve months will negatively affect the offender's immigration status. Furthermore, proper consideration of that likelihood requires, first, evidence 'sufficient to permit a sensible quantification of that risk to be undertaken,' and second, demonstration by the offender 'that deportation in his/her case would in fact be a hardship.'[13]

30 In her reasons for sentence, the learned sentencing judge stated that the Respondent's status:

is now precarious and will depend upon the discretion of the Minister for Immigration and this is the matter which will bear heavily upon you whilst undergoing any sentence. I accept that you have worked hard to improve your skills in Australia to apply for permanent residency so that you can continue to live here with your fiancée. This has now been put in jeopardy and I have taken that into account, although this is a discretionary matter for the Minister. It is also apparent that in this case you have considerable family, social support and career prospects in Turkey, so that the real detriment that you would suffer from any possible deportation would be the impact on your relationship of some two years with your partner and the loss of a prospect of life together in Australia.

1. There was no or insufficient evidence upon which the learned sentencing judge could conclude that the respondent's immigration status was now precarious. To the extent her Honour took it into consideration in arriving at the respondent's sentence, as it is clear that she did from her reasons for sentence, her Honour fell into error. That error was no doubt minimised by the fact that any detriment which would be suffered by the Respondent were he to return to Turkey was held to be limited to the impact it might have on his relationship with his fiancée who is Australian.
2. Notwithstanding this error, the related factors were not of such significance that a difference sentence would have been or ought to be imposed.[14] Indeed so much was properly conceded by counsel for the appellant.
3. In all the circumstances therefore, the appeal should be dismissed.

[1] DPP v Karazisis [2010] VSCA 350 ('Karazisis').

[2] [1996] VICSC 30; [1996] 2 VR 520.

[3] [2006] VSCA 147; (2006) 163 A Crim R 538 ('Bright').

[5] Karazisis [127] (Ashley, Redlich and Weignberg JJA, Warren CJ and Maxwell P concurring on this point).

[6] [2010] VSCA 196 ('Guden').

[7] See Khem v The Queen [2008] VSCA 136, [31].

[9] (Unreported, Court of Appeal, 29 April 1998, Tadgell, Phillips and Kenny JJA).

[10] [2006] VSCA 238; (2006) 167 A Crim R 18, [14].

[12] Under s 501(1), the Minister for Immigration 'may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.' Under s 501(2), the Minister 'may cancel a visa that has been granted to a person' if he or she 'reasonably suspects that the person does not pass the character test' and that 'person does not satisfy the Minister that the person passes the character test.' For the purposes of section 501, pursuant to s 501(6)(a), a person does not pass the 'character test' if they have a 'substantial criminal record.' By reason of s 501(7)(c), a person has a 'substantial criminal record,' if they 'been sentenced to a term of imprisonment of 12 months or more.'

[14] Criminal Procedure Act 289(1)(b).