Kocyigit v R

Court of Criminal Appeal (NSW)|2018-11-28|Before: Hoeben CJ, Bellew J, Campbell J

Judgment

HOEBEN CJ at CL: I agree with Bellew J.
BELLEW J: On 14 February 2018 Mehmet Kocyigit ("the applicant") pleaded guilty in the Local Court to a charge in the following terms: On 7 February 2017 at Auburn in the State of NSW did rob Sayed Najafi of certain property, to wit, one Samsung Galaxy mobile phone IMEI 3590300616473 and one black leather wallet containing approximately $450 cash, one Opal card, one Medicare card and one immigration card, the property of the said Sayed Najafi, and at the time of the robbery inflicted actual bodily harm on the said Sayed Najafi.
The charge to which the applicant pleaded guilty was contrary to s 95(1) of the Crimes Act 1900 (NSW) ("the Act"), the maximum penalty for which is 20 years imprisonment. The applicant adhered to his plea when he appeared before the District Court for sentence with a co-offender, John Sio ("Sio").
On 11 May 2018, the applicant was sentenced by her Honour Judge Herbert to a non-parole period of 1 year and 7 months imprisonment commencing on 10 May 2018, with an additional term of 1 year imprisonment. The applicant is eligible for release on parole on 9 December 2019.

THE FACTS OF THE OFFENDING

An agreed statement of facts was tendered before the sentencing judge, on the basis of which her Honour found the facts of the offending to be as follows (commencing at ROS1): THE FACTS The facts in this matter are that on 7 February 2017 at about 3.15am the victim, Sayed Najafi left his home to make a telephone call to his family overseas. When he left the house the victim had with him a Samsung Galaxy mobile phone and he used an Optus pre-paid card. He also had his black leather wallet that contained an Opal card, various other cards and A$450 and some coins. The victim walked east along South Parade towards Auburn Railway Station, as he walked past Vales Lane the victim took out his mobile from his pocket to make a telephone call. He had a cigarette in his left-hand. The victim saw two men in Vales Lane. He described the first man as being 25 to 28 years old with a short black beard, skinnier and slightly shorter than the victim, with short black hair that was a bit curly. He was wearing dark-coloured shorts that went below his knees and he looked to be of Middle Eastern descent. He had olive-coloured skin. It is the Crown case that this is the offender, Mehmet Kocyigit. The victim described the second male as Tongan, big build, taller than the victim, he had short black hair, a goatee-style beard and was fit looking. He was wearing shorts, which went to below the knee and a short-sleeved t-shirt. It is the Crown case that this is the offender John Sio. Kocyigit approached the victim and said "Please give me a light, brother." The victim stopped walking, he did not say anything, the victim gave his cigarette lighter to Kocyigit. As soon as he did this, Sio punched him to the right side of his face and the right side of his head just above his ear. The victim felt a lot of pain; the offender Sio punched the victim several times in the head and face. The victim's nose was bleeding heavily and his mouth was full of blood, the victim yelled, "Help, help." When Sio was punching the victim, Kocyigit was trying to grab the victim's mobile phone from his hands. The victim fell to the ground and saw his wallet fall to the ground. The victim closed his eyes while he was being assaulted. One of the offenders took the victim's wallet; both of them ran off along South Parade towards Park Road with the victim's mobile and his wallet. The victim chased the offenders for a short distance before he lost sight of them. The victim went back to where the assault occurred and picked up his cigarettes and lighter and went home. His nose and mouth were bleeding. The victim reported the matter to Auburn Police the next morning and was taken to Westmead Hospital where he received treatment for his injuries. The victim was admitted to hospital on 7 February and discharged on 8 February 2017. The victim's injuries, as a result of the offence, included a comminuted nasal fracture; subcutaneous emphysema; gas locules in the extraconal space of both orbits; marked opacification of the ethmoid air cells bilaterally; bruising to his eyes, nose and lips; abrasions to the face; a split and bleeding lip. Police obtained and reviewed CCTV footage taken from premises at Park Road, Auburn. This footage they captured two men walking in a northerly direction along Park Road for a short time before the offences took place. Police inquires revealed that an Optus sim card subscribed to Latu Sio, the mother of the offender Sio, was used in the victim's mobile less than 24 hours after the offence. On 6 June 2017 police executed a search warrant at the home of Sio. Police spoke to Sio and said "A mobile phone was stolen, do you know where the mobile phone is now?" The offender said "I think it's in my room." Police found the mobile phone in Sio's bedroom and a pair of FILA-brand shorts consistent with those worn by Sio at the time of the offence. Sio was arrested and taken to Auburn Police Station where he participated in a recorded interview with the police. During the interview he told the police the following: "We walked to the station and then decided to come up with the idea to rob someone, well, not rob someone but take his phone. We seen someone walk past and, yeah, he asked them for a lighter and that's when I chucked the punch. I just chucked -1 just punched - chucked the punch, a few punches, and he - he started kicking him as well, my mate started kicking him as well. The guy fell to the ground and my mate started grabbing his stuff from his pockets, then I started punching him as well, about nine times to the head." The victim's mobile and wallet were taken and the co-offender took the phone and wallet. Two weeks after the robbery the co-offender gave him the phone. He knew the co-offender from school. The offender Sio was shown CCTV footage that had been obtained from Park Road, Auburn and identified himself as one of the males. The male in the FILA-brand three-quarter pants and Sio also identified Kocyigit in the footage. Kocyigit was arrested on 6 June 2017 at about 7.40am. Police executed a search warrant at his home at Norval Street, Auburn. Police found clothing and a bum bag consistent with those worn by Kocyigit at the time of the offence. Later the same day Kocyigit presented himself to Auburn Police Station and he was arrested. Kocyigit participated in a recorded interview with the police and he said, On the evening of the offence he had been with the co-offender Sio; that Sio assaulted the victim, that he pushed the victim; and he saw Sio take the victim's phone. During that interview the offender Kocyigit was shown the CCTV footage taken from Park Road, Auburn. He identified the offender Sio as the male and identified himself as the male on the right side in the footage. I accept the evidence of Sio that there was a discussion between the offenders prior to leaving Kocyigit's home. At the suggestion of Kocyigit they agreed to commit a robbery because Kocyigit said he wanted money for his brother's rent. Kocyigit was to approach the victim, Sio would punch the victim and Kocyigit would take his property.

THE OBJECTIVE SERIOUSNESS OF THE OFFENDING

It should be noted that none of the factual findings reached by the sentencing judge, in terms of either the objective seriousness of the offending or the applicant's subjective case, were the subject of any challenge before this Court. The sentencing judge found (commencing at ROS 4) that the applicant and Sio, by prior agreement, approached the victim and struck him with multiple blows before robbing him, and that both had persisted in attacking the victim even after it was obvious that he was injured and had called for help. Her Honour found (at ROS 5) that the period of contemplation and planning on the part of the applicant and Sio was "brief and rudimentary", but that the offending was aggravated by the fact that it was committed in company. Her Honour also found that the injuries sustained by the victim were "relatively serious". Having regard to all of these factors, her Honour concluded (at ROS 5) that the offending fell at the mid-range of objective seriousness. In reaching that conclusion, her Honour rejected the applicant's sworn evidence (at T 24.33) that the robbery had not been planned.
In terms of general deterrence her Honour said (at ROS 13-14): Considerations of general deterrence are important for robbery offences, even if it is to be given lesser weight in this matter. Personal deterrence remains a relevant consideration.
Her Honour's reference to general deterrence being given "lesser weight" in the present case is to be understood as a reference to the applicant's psychological condition which is discussed further below.

THE APPLICANT'S SUBJECTIVE CASE

In the course of giving evidence before the sentencing judge, the applicant expressed his remorse for the offending (at T25.5 and following). He applicant also told her Honour that he did not think that he would ever commit an offence like this again because he was "not that type of person" (at T27.19-T27.20).
Tendered in the applicant's case on sentence was a report of Chafic Awit, a registered Psychologist. On the basis of the history provided by the applicant, Mr Awit recorded that the applicant was 21 years of age, that he had been born in Turkey, and that he had migrated to Australia when he was aged 3. The applicant told Mr Awit that the relationship between his parents was "riddled with verbal abuse", leading to their separation almost three years ago.
The applicant completed year 12 and although he had a sporadic work history for a period of time, he had obtained employment shortly after his arrest. He said that he had commenced using illicit substances at the age of 15, having been introduced to cannabis by a peer group. He told Mr Awit that he had initially used cannabis each weekend but that this escalated to daily use over a short period of time. He told Mr Awit that he had felt that short term benefits of using illicit substances included numbing his mind and allowing him to escape reality, and that these benefits far outweighed any adverse consequences that such addiction might have on his family, his employment and his general functioning. He told Mr Awit that he continued to use cannabis because he felt that it assisted him.
In terms of the offending, the applicant told Mr Awit that he had gone out with a friend to try and break a depressive mood, having been recently terminated from his employment. He said that he was looking for a convenience store at which he could buy a lighter to light a cigarette, when he and his friend saw the victim. He told Mr Awit that it was never his intention to assault or rob the victim and that when he had asked for a light, his friend commenced the assault, following which he said he acted impulsively by participating.
Under the heading "Mental Health History" Mr Awit stated: Mr Kocyigit advised that he was diagnosed by his General Practitioner with Bipolar Type II Disorder when he was approximately 14 (fourteen) years old. He advised that he was medicated with Seroquel for two (2) months before he removed himself from this medication, believing that there was nothing wrong with him…Mr Kocyigit further advised that over the years he has experienced symptoms of anxiety and depression.
In recording these matters Mr Awit noted that he had reviewed a history of symptomatology with the applicant who, in his opinion, had recorded a number of diagnostic criteria consistent with Bipolar disorder. Mr Awit expressed the opinion that the results of psychometric testing that he administered were consistent with a diagnosis of Major Depressive Disorder. He concluded: The writer is of the professional opinion that there is a psychological nexus between Mr Kocyigit's condition and the offences before the Court…It is the professional opinion of the writer that Mr Kocyigit's ongoing underlying psychological condition led to fuel his maladaptive coping behaviour…The main risk to Mr Kocyigit's offending behaviour is his difficulty managing negative emotions without resorting to illicit substance use. In order to reduce Mr Kocyigit's risk of recidivism, psychological intervention will assist in developing alternate strategies to manage his anxiety and difficult emotions. My Kocyigit's future participation in drug counselling is a must. His attendance to psychological intervention with the writer has further assisted in reducing symptoms of anxiety and depression. Mr Kocyigit's strengths lie in the fact that he has shown a determination to try and reform himself.
Also tendered in the applicant's case on sentence was a pre-sentence report which assessed the applicant as being at a low risk of re-offending. The report concluded: Whilst appropriately engaging and forthcoming towards his requirements with this assessment, concern was noted regarding Mr Kocyigit's apparent minimisation of his involvement towards the offences. Nevertheless, a functions assessment of Mr Kocyigit's current circumstances would suggest that he is predominantly engaged within a meaningful life pathway where his vocational undertakings have been complemented and he is otherwise committed to familial support and bonding. He claims to have divorced himself from what appears to be the fundamental criminogenic factors within these matters, specifically his choices of associates. Given Mr Kocyigit has been assessed as a low level of criminal recidivism, community supervision does not appear warranted. It is noted that Mr Kocyigit was provided with resources by this agency and has been encouraged to continue to liaise with community health professionals in order to better educate himself on the dangers of long term drug abuse.
Finally, the applicant relied upon a number of testimonials tendered in his case. His father made mention of the applicant's expressed "shame" for his offending, and his wish to apologise to the victim. The other testimonials spoke of what the authors saw as the applicant's character and integrity. The applicant's criminal history consisted of nothing other than a relatively minor traffic matter which had been dealt with in the Local Court in 2014.
Against a background of this evidence, the sentencing judge concluded that (inter alia): 1. the offending appeared to be very much out of character (at ROS 5); 2. the applicant had given Mr Awit a false account of the circumstances of the offending which lessened the weight to be given to Mr Awit's opinion (at ROS 7); 3. the applicant's remorse was genuine (at ROS 7 - ROS 8); 4. the applicant had reasonable prospects of rehabilitation (at ROS 9); and 5. she could not be satisfied that the applicant would not commit any further offences, in light of his present attitude towards the ongoing use of cannabis (at ROS 9).
I have already noted (at [8] above) that her Honour effectively concluded that considerations of general deterrence, whilst important, were to be given less weight in the present case. In terms of the applicant's moral culpability her Honour found (at ROS 13) that the applicant's youth and immaturity would have contributed to the commission of the offence. Her Honour then said (at ROS 13): …The comparative youth does have some impact on the weight to be given to considerations of general deterrence. Clearly in sentencing young offenders general deterrence may give weight to considerations of rehabilitation. However, that principle itself yields to others where young offenders commit crimes of an adult nature. The use of violence during a robbery commonly by comparatively young men means that the moderation of youth on the consideration of general deterrence will not be significant. Chafic Awit, the registered psychologist who has been treating the offender Kocyigit, expressed the opinion that the offender's depression, anxiety and substance use disorder would impact on the offender's decision-making. I accept that is so, but the offence was not as impulsive as the offender claimed to Mr Awit. The reduction in the offender's moral culpability would be modest.

THE GROUND OF APPEAL - Her Honour imposed a sentence that was unreasonable or plainly unjust and the sentence is manifestly excessive.

Submissions of the applicant

Counsel for the applicant relied upon four particular matters which, it was submitted, supported a conclusion that the sentence was manifestly excessive, and that a lesser sentence was warranted in law. These factors were: 1. the application of the guideline judgment in R v Henry (1999) 46 NSWLR 346; 2. the assessment made by the sentencing judge of the role of general deterrence in the sentencing process, along with her findings as to relevant ameliorating factors; 3. the applicant's psychological condition; and 4. sentencing statistics for this type of offending.
In expanding upon these factors, counsel submitted that the applicant's role in the offending was subordinate to that of Sio, and that his mental illness was a significant factor which was not reflected in the sentence which was imposed. It was submitted that in all of these circumstances, the sentence imposed failed to adequately reflect the applicant's overall subjective case, the relevance and significance of his mental illness, and the reduced role of general deterrence.
In oral submissions before this Court, counsel emphasised various aspects of the applicant's subjective case, including his good prospects of, and personal commitment to, rehabilitation, his more recent work history, and his lack of criminal history.

Submissions of the Crown

The Crown accepted that the guideline judgment in Henry was a relevant reference point in assessing whether the sentence which was imposed was manifestly excessive. In that regard the Crown noted that: 1. the applicant was a young offender with little criminal history; 2. no weapon was used in the offending; 3. there was a limited degree of planning; 4. actual violence was inflicted on the victim, resulting in injuries that were relatively serious; 5. the victim was vulnerable, in the sense that he was walking alone at night; 6. a small amount of money, and a small number of items were taken from the victim; and 7. the applicant had entered a plea of guilty.
The Crown submitted that when these factors were applied to the circumstances of the present case, the Henry guideline did not suggest manifest excess.
In terms of the applicant's psychological condition, and the role of general deterrence in determining an appropriate sentence, the Crown submitted that it was clear that the sentencing judge had given full consideration to the applicant's mental health when assessing his moral culpability. The Crown also submitted that the mere fact that an offender may suffer from a mental illness is not, of itself, a sufficient reason to impose a more lenient sentence than might otherwise have been warranted. The Crown submitted that it remains for a sentencing judge to examine the facts, and determine whether any mental condition has the consequences for which an offender might contend.
The Crown further submitted that the sentencing judge had properly applied the principles which govern the sentencing of young offenders, and emphasised that whilst considerations of general deterrence and retribution may be of less significance when sentencing a young offender as opposed to an adult, such matters cannot be completely ignored. It was submitted that those matters remained relevant, and that the weight to be given to them was a matter for the sentencing judge. The Crown submitted that there was no error in the manner in which her Honour had addressed this issue.
Finally, the Crown submitted that the sentencing statistics relied upon by the applicant were of limited utility, and that the issue for this Court to determine was not whether the applicant's sentence fell within or outside a particular statistical range, but whether the sentence fell outside the range of the permissible exercise of sentencing discretion.

Consideration

In Henry, Spigelman CJ (with whom Wood CJ at CL, Newman J and Simpson J (as her Honour then was) agreed) said the following in relation to offences contrary to s 97 of the Crimes Act (at [162]): [162] It appears from the cases that come to this Court, including the present proceedings, that there is a category of case which is sufficiently common for purposes of determining a guideline: (i) Young offender with no or little criminal history; (ii) Weapon like a knife, capable of killing or inflicting serious injury; (iii) Limited degree of planning; (iv) Limited, if any, actual violence but a real threat thereof; (v) Victim in a vulnerable position such as a shopkeeper or taxi driver; (vi) Small amount taken; (vii) Plea of guilty, the significance of which is limited by a strong Crown case. ... [165] In my opinion sentences for an offence of the character identified above should generally fall between four and five years for the full term. I have arrived at this figure after drawing on the collective knowledge of the other four members of the Court with respect to sentence ranges. I have also reviewed the sentences which this Court has imposed on occasions when it has intervened, including in Crown appeals where the principle of double jeopardy applies. The proposed range is broadly consistent with this body of prior decisions in this Court.
The offence to which the applicant pleaded guilty was contrary to s 95 of the Act, and not s 97 as was the case in Henry. However, as the Crown pointed out, the judgment in Henry remains a relevant reference point in relation to sentencing for an offence against s 95: Azzi v R [2008] NSWCCA 169 at [37]; McDonald v R [2015] NSWCCA 280 at [92]. In terms of the factors referred to by Spigelman CJ, those in (i), (iii), (iv), (v), (vi) and (vii) apply to the applicant. In those circumstances, the judgment in Henry provides little support for the conclusion that the sentence is manifestly excessive.
The sentencing judge exhaustively reviewed the applicant's subjective case, including the evidence of his psychological state. The relevance of such a factor on sentence was explained by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De la Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]-[178]. In a subsequent decision of Aslan v R [2014] NSWCCA 114 Simpson J (as her Honour then was) said, in reference to De La Rosa (at [34]): [34] It will be observed that none of these principles stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for.
Subsequently, in Alkanaan v R [2017] NSWCCA 56 Harrison J (with whom Payne JA and Schmidt J agreed) said (at [108]): …Simpson J's comments in Aslan also need to be considered and applied to the circumstances of each particular case. The mere fact of mental illness is not of itself a necessary or sufficient indicator for a more lenient sentence. The principles described by McClellan CJ at CL in De La Rosa are no more than indications of what experience has shown commonly arise in such cases. As Simpson J has said, however, there is no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for.
In the present case, the applicant relied upon the report of Mr Awit to establish his mental state. The sentencing judge concluded that because the applicant had given Mr Awit a false version of events surrounding the offending, the weight which could be attached to Mr Awit's opinions was necessarily lessened. That conclusion was clearly open. Indeed, as I have already noted, it was not the subject of challenge before this Court. Clearly, her Honour did not ignore that issue. On the contrary, she found that although the applicant's mental state impacted upon his decision making capacity, the offending was not as impulsive as the applicant had claimed to Mr Awit and that accordingly, any reduction in the applicant's moral culpability would necessarily be modest. Those findings were amply supported by the evidence. In terms of general deterrence, and although it was not expressly stated, it is apparent that her Honour gave that factor less weight on account of the applicant's mental health. Again, that approach was in accordance with principle, and does not disclose error.
Further, the sentencing judge clearly took the applicant's youth into account in the passage of her remarks set out at [19] above. He approach to that issue was entirely in accordance with principle: see for example KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51. The seriousness of an offence is relevant to the emphasis that can be given to the youth of the offender. Retribution and deterrence cannot, in a serious case, give way entirely, or even substantially, to the interests of rehabilitation: JM v R (2012) 223 A Crim R 55; [2012] NSWCCA 83 at [108] per Simpson J (as her Honour then was). The present was, on any view, a serious case and her Honour's approach discloses no error.
In oral submissions before this Court, counsel for the applicant expressly accepted that the sentencing statistics which were relied upon were, to use her term, "bald", or in other words provided no detail as to the circumstances of the offending to which they related. It is partly for that reason that it has been repeatedly observed that consistency in sentencing is not demonstrated by, and does not require, numerical equivalence. What is sought is consistency in the application of sentencing principle: Hili v R; Jones v R [2010] HCA 45 at [48]-[49]. In my view, the sentencing statistics relied upon by the applicant in the present case do not support a conclusion that the sentence was manifestly excessive.
Fundamentally, in order to demonstrate that the sentence is manifestly excessive, it is incumbent upon the applicant to establish that it was unreasonable or plainly unjust: Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54. The submissions advanced on behalf of the applicant amounted, in large measure, to the proposition that the sentencing judge had failed to give proper weight to his subjective case. Matters of weight are necessarily within the province of the sentencing judge. The circumstances in which matters of weight will justify appellate intervention are narrowly confined: Vaiusu v R [2017] NSWCCA 71 at [29] per R A Hulme J; see also Zhao v R [2016] NSWCCA 179 at [58] per Adams J.
Further, the seriousness of the applicant's offending should not be understated. It was perpetrated on a defenceless member of the public who was doing nothing more than minding his own business walking down a suburban street speaking to a family member on his telephone. The fundamental right of a member of the public to go about his or her business without fear of being attacked has been repeatedly reinforced by this Court: see for example Vaeila v R [2010] NSWCCA 113 at [22]; R v Woods [1990] NSWCCA (9 October 1990 unreported); R v Tuuta [2014] NSWCCA 40 at [52]; Mansour v R; Hughes v R [2013] NSWCCA 35 at [43]. It follows that when persons engage in violence towards others of the kind displayed by this applicant towards his victim, a stern sentence will be necessarily imposed.
In my view, the sentence imposed on the applicant by the sentencing judge was within the proper range of sentencing discretion. In particular, any complaint that the sentencing judge failed to have appropriate regard to the applicant's subjective case, and imposed a manifestly excessive sentence as a result, cannot be made out. Clearly, her Honour was properly mindful of the fact that an offender's subjective case, irrespective of how strong it might be, cannot be allowed to result in the imposition of a sentence which is disproportionate to the seriousness of the offending.
I propose the following orders: 1. Leave to appeal is refused.
CAMPBELL J: I agree with Bellew J.

Amendments 10 December 2018 - Inclusion of Catchwords DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 December 2018

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