Application to Appeal against Sentence - Topcu
152 Topcu's grounds of appeal against sentence, including the 2 raised at the hearing, were:-
1. The learned judge erred in not taking account the applicant's assistance to authorities.
1A. A lesser sentence is warranted in law by virtue of fresh evidence relevant to the applicant's assistance.
2. The sentence imposed is manifestly excessive.
3. The applicant has a justifiable sense of grievance as a result of the sentences imposed on the co-offender Eken.
153 In light of my view that this Court should allow the appeal against Topcu's conviction in respect of count 1A, convict him of the offence in count 1B, and thus re-sentence, it is unnecessary to address these precise grounds, albeit many of the arguments raised under them remain relevant to the issue of sentencing Topcu in respect of count 1B.
154 The matters relied on before Judge Puckeridge as assistance to the authorities were as follows. To rebut a suggestion made in cross-examination, it was led from Topcu in re-examination that he had received a subpoena to give evidence against Eken at the latter's trial, that he would comply with that subpoena and that would mean that their friendship was at an end. The second matter was evidence Topcu gave on 30 March 2006 when, during his sentencing proceedings, he again undertook to give evidence against Eken.
155 The matters relied on as fresh evidence as to the Topcu's assistance seem to be the following:-
(i) That Eken participated in a ERISP admitting his guilt to some offences following both Topcu and Papadopoulos giving evidence during their trial as to Eken's actions on the night of the offending;
(ii) Eken pleaded guilty subsequent to the Applicant during his own sentencing proceedings agreeing to give evidence against Eken should the latter go to trial; and
(iii) Topcu's evidence was tendered in Eken's sentencing proceedings Judge Puckeridge based findings against Eken on this evidence.
156 As has been said, the Eken ERISP was on 27 January 2006, Topcu's evidence having been given on 24 and 25 January and Papadopoulos' on 25 January 2006. It would seem that, as was Topcu's right, he elected prior to giving evidence at his own trial, to provide no account of what had transpired at the flat.
157 Judge Puckeridge declined to give Topcu any discount for past or future assistance. Although his Honour's remarks as to the reasons for this are not as clear as they might be, it seems to have been simply that he did not think the sentence for Topcu should be any lower than he proposed. If, as I suggest should occur, Topcu's conviction on count 1A is quashed, this reason has been overtaken by events.
158 However, there is another factor which disentitles Topcu to a discount for assistance. As was said in R v Cox [2004] NSWCCA 413 at [33]:-
"The applicant was bound to answer questions on oath. The compliance with that obligation is not to be regarded as relevantly assisting law enforcement authorities for the purposes of the Crimes (Sentencing Procedure) Act 1999 s 23 - see R v Calderoni [2000] NSWCCA 511 [8 and 9]."
159 The Crown also submitted that the evidence given by Topcu at his own trial was less than frank and contained a number of lies and that on this account also no discount would be appropriate - see Stanbouli (2003) 141 A Crim R 531. I do not find it necessary to pursue this issue.
160 Before I turn to the topic of what the appropriate sentence to be imposed on Topcu should be, it is convenient to say something about the argument based on a comparison between the sentences imposed on Topcu and Eken.
161 On 27 April 2006 Judge Puckeridge sentenced Eken on 6 counts. One was of an assault, two were of assault occasioning actual bodily harm and the other three were for participation in the offences with which Topcu and Papadopoulos were convicted. In respect of the offence involving Topcu the sentence imposed was of 14 years including a non-parole period of 10 years both periods commencing on 12 May 2006. In respect of the offence which corresponds with that I have numbered 2B the sentence imposed was of 10 years including a non-parole period of 7 years commencing on 12 May 2006. In the case of the offence which corresponded with that which I have numbered 3B the sentence imposed was also of 10 years including a non-parole period of 7 years also dating from 12 May 2006. The sentences imposed on the various assault charges were largely concurrent but two of them did include incarceration from 30 July 2004 to 12 May 2006.
162 Thus the effective total sentence imposed on Eken was of imprisonment for 15 years 9½ months (approximately - from 30 July 2004 to 12 May 2020) including a non-parole period of 11 years 9½ months (approximately - from 30 July 2004 to 12 May 2016). For Eken's and Topcu's involvement in the same offence the respective sentences were imprisonment for 14 years including a non-parole period of 10 years on the one hand and imprisonment for 10 years including a non-parole period of 7 years.
163 Eken has appealed to this Court against the sentences imposed on him and indeed, there was an suggestion that the Appellant's applications to appeal against sentence might be deferred to be heard concurrently with Eken's. The Court declined to adopt that course.
164 Having regard to the change in conviction I propose and that in consequence I would sentence Topcu for a different offence than that for which Eken received the sentence of 14 years imprisonment, it is unprofitable to pursue any comparison between the sentences imposed or proposed on these 2 offenders. The matter is a fortiori when regard is also had to the other differences between them.
165 I turn then to other considerations bearing on of the appropriate sentence to be imposed on Topcu. The offence is one which arises pursuant to Section 61J of the Crimes Act, viz. having sexual intercourse without consent, knowing the victim does not consent and in circumstances of aggravation. The maximum penalty prescribed is 20 years and there is a standard non-parole period of 10 years. The circumstances of aggravation provided for may be summarised as:-
(a) The infliction of actual bodily harm;
(b) A threat to inflict actual bodily harm;
(c) The offender is in the company of another;
(d) The victim is under the age of 16;
(e) The victim is under the authority of the offender;
(f) The victim has a serious physical disability; and
(g) The victim has a serious intellectual disability.
166 In light of findings previously made, the only one of these circumstances now relevant to Topcu's situation is that he was in company. At least on the facts of this case, this circumstance is not as serious as some of the others contemplated by the section, e.g. where the victim is under the authority of the offender, perhaps his pupil or stepdaughter.
167 The circumstances of Topcu's offence appear sufficiently above and need no repetition. However, when sentencing Topcu Judge Puckeridge made some findings that are relevant. His Honour's remarks in this connection include:-
"The Crown accepts that on the evidence the Prisoner Topcu was scared and on the evidence could be said to have genuinely believed that if he did not act as he did he would be seriously injured.
It is further submitted that as the defence of duress has failed, the Court must determine the sentence on the basis that the threats to Topcu by Eken would not have driven a reasonable person to act as he did and/or that Topcu could have avoided the effects of any duress by refusing to comply with the demands of Eken.
The Prisoner in statements to the Court stated that he accepts that he could have done more to prevent what occurred. … The Crown does not rely upon the Prisoner Topcu's record of previous convictions by way of an aggravating factor. The Crown further concedes that the offender's conduct was not aggravated by the fact that the offences were pre-planned and submits that duress could be taken into account."
168 His Honour seemed to accept that Topcu was not a person of violent disposition and was remorseful for the offence and for not doing more to prevent it occurring. His Honour took into account that Topcu was in protective custody because of information, presumably against Eken, provided for the assistance of the authorities.
169 His Honour said that he had taken into account the evidence of a psychologist and "consider it to be appropriate in the special circumstances that there be a need for a longer period for which prisoner is on parole". Apart from referring to an opinion of the psychologist that Topcu needed to become more assertive, his Honour provided no other guidance as to what the "special circumstances" were.
170 I move from his Honour's remarks to my own consideration of the evidence. Topcu was born on 20 June 1976. He left school during year 11 and worked for a time as an apprentice painter and then as one without trade qualifications. He married in 1998 but this marriage ended in 2002. He has not worked since mid-2005. He told the author of his Pre-Sentence Report that he had commenced cannabis use in his teens and that this use became a problem after the breakdown of his marriage. He told that author that he used other drugs when socialising. I note that statement is a pale reflection of the evidence given at his trial when he indicated that because drugs were there he was taking them and, in answer to another, viz. "Were you consuming drugs on a daily basis or what was the position?", he replied, "We would be like three days taking them, sleep for about fourteen hours, get back up, eat something, consume more drugs".
171 Topcu was first before a court in May 1993 for assault occasioning actual bodily harm and in 1995 had a further conviction on a similar charge. Others of his some 11 previous convictions in New South Wales include, knowingly take part in the supply of a prohibited drug, breaking, entering and stealing, having goods in custody, driving at a speed dangerous to the public, driving whilst suspended and driving whilst disqualified.
172 In December 2003 he was dealt with in the Australian Capital Territory for two charges of burglary with intent to steal, two of theft and two other offences. On each charge he was given a suspended sentence conditional on entering a recognisance to be of good behaviour for 3 years.
173 In evidence at Topcu's sentencing hearing was a report of a psychologist, Mr Watson-Munro. He suggested that a number of Topcu's problems arose from the use of cannabis which he was informed had increased following the failure of his marriage and also following his being stabbed. In his conclusions, Mr Watson-Munro said that Topcu described "a complex developmental history, characterised by substance abuse in his teenage years, substantial depression subsequent to the breakdown of his marriage and the development of a significant Post-Traumatic Stress Disorder as a consequence of being stabbed" and that "His depression and the stabbing incident caused a recrudescence and significant escalation of his drug use, in addition to rendering him psychologically vulnerable to the potential manipulation and exploitation of others …". Mr Watson-Munro said that Topcu required ongoing professional assistance including psychotherapy to help deal with his unresolved symptomatology coupled to more specific social skills training to assist with his low self esteem and poor capacity to assert himself in difficult situations.
174 This attention to the circumstances of Topcu must not be permitted to overshadow the seriousness of his offence. There was before Judge Puckeridge a Victim Impact Statement read by AB the terms of which indicated that the events of the day had had a substantial impact on her life, affecting her ability to sleep, socialise and work for an extended period. There was nothing in the statement to suggest that this impact had ceased.
175 Furthermore, the statutory provisions make clear that Parliament regards offences of the nature of that committed by Topcu seriously. On the other hand, it must be recognised that, in accordance with accepted sentencing practice, an assessment is required as to the heinousness of an offence. The maximum sentence provided for is one reserved for an offence which can be described as within a worst category of the offences with which the statutory provision deals - see Veen v R (No 2) (1987-1988) 164 CLR 465 at 478 - and some assessment against this standard is required for lesser offences.
176 Topcu's offence did not fall into the category of a worst case. Because of the importance they have to any assessment of the seriousness of Topcu's offence relative to a worst case, there are some other factors that should be mentioned or mentioned again. The first group includes the Crown concession reflected in Judge Puckeridge's findings that, on the evidence Topcu was scared and genuinely believed that if he did not act as he did he would be seriously injured and that the sentence should be determined on the basis that the threats to Topcu would not have driven a reasonable person to act as he did and/or that Topcu could have avoided the effects of any duress by refusing to comply with the demands of Eken. Implicit in this is the conclusion that Topcu's criminality was to a large degree the product of weakness rather than the criminality and unqualified abuse of power commonly involved in rape.
177 These circumstances and factors mean that the weight to be given to a number of the purposes of sentencing - general deterrence, personal deterrence, rehabilitation, retribution and protection of the community - see Veen v R (No 2) at 476, is appreciably different from that appropriate for most offences under s61J and other sections in Part 3, Division 10 of the Crimes Act.
178 There is nothing to indicate that Topcu's own offending was premeditated and although I have criticised him for his disregard of AB's interests in not informing her of Eken's intentions as expressed in the phone call, that was not part of the offence and, except insofar as it may throw some light on Topcu's subjective features, not relevant in the determination of his sentence. That Topcu's offending lasted for but a short time and it stopped as soon as Eken left the room is also a factor that makes Topcu's offence less serious than many the courts have to deal with. He did not ejaculate and AB was not faced with the fact or fear of an unwanted pregnancy. There is no evidence whether there was any risk or fear of HIV infection although clearly AB's victim impact statement indicates that a result of the night's events has been fear in other areas.
179 Topcu's apology and ruse of spitting onto a tissue shows that he was not without some consideration for AB as soon as Eken's influence on events was reduced or removed. In totality, these factors mean that, by comparison with others that can arise under s61J, Topcu's offence fell well below an offence in the middle of the range of objective seriousness.
180 Given the report of Mr Watson-Munro, and the different nature of Topcu's prior offences, I do not regard Topcu's criminal antecedents as themselves arguing to any substantial extent for increasing his sentence upon the ground he is a recidivist. Given its circumstances and in particular the role of Eken, I do not regard the offence for which Topcu is now to be sentenced as manifesting a continuing attitude of disobedience of the law. Similar considerations lead me to the view that the fact that Topcu was on conditional liberty at the time should not have the same aggravating weight as it commonly does.
181 That is not to say that these matters are irrelevant. Topcu's subjective circumstances are not nearly as favourable as those of Papadopoulos. Furthermore, Topcu's own evidence of the lifestyle followed while he was living with Eken provides compelling grounds for thinking that he had not learnt much from prior experiences with the law or taken seriously the conditional liberty that had been extended to him. He is not, of course, now to be punished for that lifestyle or the offences he apparently committed during it but both are relevant to an assessment of his prospects of rehabilitation and the likely deterrent impact of any particular sentence.
182 Judge Puckeridge found special circumstances. Given Mr Watson-Munro's assessment as to Topcu's need for counselling, this Court should maintain that finding and, particularly as the sentence I propose will be significantly shorter than that imposed by Judge Puckeridge, the non-parole period should be greater than the proportion referred to in s44 of the Crimes (Sentencing Procedure) Act.