Police v Anton Karel TOCIN

JUDGMENT 1HIS HONOUR: Anton Karel Tocin appears for sentence in respect of two charges. In chronological order of the commission of the offences they are that he on 25 November 2010 at Leeton in the State of New South Wales did drive a motor vehicle on a road or road-related area during a period of disqualification, he being a person who was disqualified from holding or obtaining a driver licence contrary to s 25A(1)(a) of the Road Transport (Driver Licensing) Act 1998; and a further charge that he on 5 April 2011 at Leeton in the State of New South Wales did threaten to cause injury to Liam Ward, on account of Anton Tocin believing the said Liam Ward may be called as a witness in judicial proceedings, contrary to s 326(2) of the Crimes Act 1900. 2Pleas of guilty are entered to each of those matters at what I would regard as the first opportunity and accordingly the offender is entitled to the full twenty-five per cent discount for the utilitarian value of the plea. 3There was a submission made in the course of taking submissions on the aspect of the strength of the prosecution case. In those circumstances I simply remind the parties of what was said in the guideline judgment of R v Thomson; R v Houlton (2000) 49 NSWLR 383 and more recently in the decision of R v Sutton [2004] NSWCCA 225 at [12], namely that the strength of the prosecution case has no impact on the utilitarian value of the plea. 4As is customary in the Local Court, the facts were presented to this Court by way of agreed facts sheet. I turn now initially to the driving whilst disqualified, it being the first offence in time. 5The facts indicate that at about noon on 25 November 2010, local police were patrolling in McNeil Road, Leeton, when they observed a large tractor approaching from the east. Due to the farm machinery taking up an entire roadway, police veered to the left and remained stationary to allow that machinery to pass. 6As the machinery passed, police observed an older model blue Mitsubishi Magna vehicle, with no numberplate attached, on the roadway. This vehicle was behind the machinery and was travelling towards police at low speed. 7The police officers were close enough to the vehicle to observe the offender driving the vehicle and sitting in and occupying the driver's seat. It appeared to the police who made the observations, according to the facts, that the offender had full control of the vehicle as both his hands were observed to be on the steering wheel. 8The facts then go on to recite that accused, who was seated in the vehicle, and police having full knowledge of the status of the accused being a disqualified driver, the police activated all warning lights on the vehicle to come to a complete stop. 9The facts then recite that the offender negotiated a sharp left hand turn into an orange orchard and accelerated at high speed. 10I note there is no charge relating to that and I ignore that so far as dealing with the matter on sentence is concerned, and I will make a marginal note on the facts sheet to that effect. 11I turn now to the charge of threatening a witness. On any account that must be seen as the more serious charge that is before this Court. 12The offender is on conditional bail for murder, which has been brought apparently by way of ex officio indictment by the Director of Public Prosecutions. A Supreme Court bail order was made on 1 October with a number of conditions including that he no contact, approach, threaten, harass or intimidate a number of prosecution witnesses. 13In any even the facts reveal that at about 9am on Tuesday 5 April 2010, Liam Ward, who at relevant times was a paramedic working for the New South Wales Ambulance Service, was called to premises at 17 Grevillia Street, Leeton, in relation to what was said to be a stabbing. 14Although the facts have come up without apparent objection, I am informed that the situation is that Mr Tocin, the offender, was injured in the course of a motorbike accident whilst he was rounding up sheep while intoxicated and it was as a result of those injuries he called the ambulance service. 15The facts also indicate that the ambulance officer requested the assistance of the New South Wales police because of previous experience with this offender. 16In any event, more particularly relevant to the charge before the Court, the officer noted that the offender was well affected by liquor and he demanded a lift with ambulance officers to his mother's address at Leeton. The facts indicate the offender refused to tell officers how the injuries were inflicted and who was involved in the alleged assault. Ambulance officers refused to take the offender to his mother's address saying instead that they would take him to the Leeton Hospital to have his injuries assessed. 17As the offender got into the back of the ambulance he engaged in a conversation with Liam Ward. The offender said, "What's your name?" The victim replied with his name. The demeanour of the offender then changed and became aggressive and the offender said to Mr Ward, "I've been charged with murder and it's all your fucking fault. You gave a statement and it's all fucking lies". 18The facts indicate that Mr Ward was unsuccessful in attempting to settle down the offender. The victim pleaded with the offender to stop and not talk about the matter any further. Not only did he continue talking about the matter any continued with the threats saying, "You're a fucking liar. Your statement is all fucking lies. Me and my solicitors are to win this. You're going to get yours, cunt". 19No surprisingly the victim was concerned about the safety of he and his father and no doubt adding to the strength of the Crown case is what the offender said the time of the formal processing, namely, "I don't care. I'm going to muck up now". 20The offender also said at the time of charging, more particularly relevant to the matter before the Court, "Liam Ward, I'll have him". 21I simply make the observation that it is the wish of the parties that that charge of threaten witness contrary to s 326 of the Crimes Act 1900 be dealt with in the Local Court. I must say that surprises me somewhat given that the charge outstanding is one of murder and that being a charge which is in the sole province of the Supreme Court of New South Wales to resolve. 22I am surprised, without making any criticism of the parties or the prosecuting authorities, that this matter has remained in the Local Court. However, it is in the Local Court and I have to deal with it within the parameters and the constraints that this Court has. 23I have to make an assessment of the criminality before I can proceed to sentence. It seems to me that the driving whilst disqualified charge is an unremarkable example of that type of offence. It is yet again another example of someone simply thumbing their nose at the authorities and the orders of this Court and proceeding to drive, knowing full well that they are not entitled to. Not only they were not entitled to drive, they were subject to a court order prohibiting them from driving on the roads and road-related areas of New South Wales. 24I would have thought that the driving whilst disqualified is at or about the mid-point of the objective range of seriousness of matters of that sort that routinely come before the Local Court. 25I now turn to the issue and the charge of threatening to cause a witness. The objective seriousness is assessed across the board and that is all matters that come before the courts in respect of that type of charge. It is a serious charge. It carries a maximum penalty of ten years imprisonment. That is indication enough of the seriousness with which the Parliament views the charge. 26However, the situation is, it was a chance meeting. As Mr Gallagher correctly submitted, it is not a case of the offender seeking out the victim, and it is a case of oral threats made in circumstances where the offender was intoxicated and had been involved in a relatively serious accident causing injury. I would have thought the matter is slightly below the halfway point of objective seriousness of matters of that sort that come before the Court. 27In respect of each of the two matters before the Court, however, the offender was on conditional liberty. At the time he committed the offence of driving whilst disqualified on 25 November, he was subject to a bond to be of good behaviour. At the time he committed the offence of driving whilst disqualified on 25 November, he was subject to a bond to be of good behaviour. 28It is now uncontroversial that the commission of further offences committed whilst subject to conditional liberty is an aggravating factor. See the various provisions of s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, and if further authority is required, see the decision of the Court of Criminal Appeal in R v Jones (unreported, 30 June 1994), which was affirmed by the Court of Criminal Appeal in R v AD [2008] NSWCCA 289, in particular the judgment of Harrison J at [43]. 29The maximum penalty available to this Court in respect of a charge of driving whilst disqualified is one of two years imprisonment. As I have already indicated, the maximum penalty provided on indictment for the charge of threaten a witness is one of ten years imprisonment. 30This is the Local Court and accordingly the jurisdictional limit of any sentence that this Court can impose in respect of any one matter is that of two years imprisonment. However, as it has been made very clear by a number of authorities but in particular R v Doan (2000) 50 NSWLR 115, in particular the judgment of Grove J at about para 35, that jurisdictional limit and not the maximum penalty to be reserved for the worst category of case. 31I note that Doan was approved and followed by the Bench of five that constituted the Court of Criminal Appeal in the guideline judgment in assault police matters, Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 2 of 2002) (2002) 137 A Crim R 196. 32The offender has a substantial history. I am of the opinion that so far as the driving whilst disqualified charge is concerned; his record is to be taken into account as an aggravating factor. 33The situation is slightly different in the other charge of threaten injury to a witness and I am of the opinion that his criminal history does not entitle him to any particular leniency. 34The gravamen of the offence, however, of driving whilst disqualified, is the direct disobedience of a court order. Society has in place institutions including the courts to maintain some type of order in society. It is incumbent upon citizens of that society that has put those institutions in place to follow and comply with orders made by those institutions. The rule of law and the maintenance of the rule of law requires that citizens comply with court orders. 35The offence of threaten a witness is something which threatens and strikes at the integrity and the very heart of the criminal justice system. It has been made very clear on a number of occasions of recent years by the Court of Criminal Appeal that people who commit those public justice offences such as threatening a witness deserve condign punishment. 36It was observed by Beazley J of the Court of Criminal Appeal giving the leading judgment in R v Lenard; R v Fail [2006] NSWCCA 345 at [15] when she was citing with apparent approval submissions made by the Crown to the effect that the type of public justice offence threatens the integrity of the criminal justice system and caused the condign punishment. 37Similar remarks were made by McColl J also of the Court of Criminal Appeal in Marinellis v R [2006] NSWCCA 307 to the effect that, "public justice offences requires strong deterrent sentences as they strike at the very heart of the justice system and those detected must be severely punished when detected". 38In the decision of Marinellis , the court was dealing with a slightly different type of offence but nevertheless it would seem to me that those principles can be equally applied mutatis mutandis to the type of charge or the type of matter on which I am passing sentence. 39I turn now to the subjective matters put in favour of the offender. Mr Gallagher is to be complimented on the manner in which he presented the plea in mitigation in a succinct but comprehensive manner. There is nothing he could have done or said to assist his client. 40I have a pre-sentence report which was prepared particularly for the drive whilst disqualified offence. It would seem to me that much of the background material is equally applicable to both charges. 41The report sets out that the offender became known to the service as the subject of a pre-sentence report as far back as 1984. The report sets out the orders of conditional liberty to which the offender has been subject for a variety of matter, but most recently repeat offences of driving whilst disqualified. He was sentenced at this court on 6 June 2008 to a period of 12 months imprisonment with a three months non-parole period for a matter of violence. 42He is forty-seven years of age and is one of two twins. He has had a difficult background but the report indicates he enjoys a positive relationship with his father. He completed formal education to Year 10 level at high school and he has worked for most of his years in the rural type industries. 43Up until his arrest on 5 April, he was working in the local rural industries. 44He has a history of depression and anxiety, and as I indicated to Mr Gallagher in the course of submissions, with a charge of murder hanging over one's head, one can well understand his anxiety. 45Be that as it may, that cannot be any excuse or reason for the actions and the threats made to the witness. 46He is assessed as suitable for community service, but I am of the opinion that community service is manifestly inadequate for both offences on which I have to pass sentence. 47A number of other matters were put to me by Mr Gallagher. The plea was appropriately emphasised and in particular there is very significant utilitarian value in the plea to that charge of threatening a witness. Obviously it has prevented Mr Ward, the victim in the matter, from giving evidence. 48It is also put to me, and I accept, that there are significant issues of alcohol. I have been around the criminal justice system in one capacity or another for nigh on thirty years and it seems to me that the record of this offender reeks of someone who has had a very significant issue with alcohol for a very lengthy period of time. 49I remain circumspect as to whether there are genuine ambitions by the offender to reform himself and do something about that, but where he is at the moment, he having been in custody since 5 April, he has certainly not had access to alcohol. 50There apparently no ongoing medical issues. 51It is put to me that he is genuinely remorseful. It needs to be stated that I am aware very much of the line of authority. See for example R v Van Rysewyk [2008] NSWCCA 130 about the need for more evidence on the issue of remorse. However, this is a busy list day in the Leeton Local Court and there must be some degree pragmatism engaged by all concerned, including the bench and the parties. The Court very often in the Local Court, particularly on a busy list day, simply has no alternative but to accept the submissions put on behalf of an offender. 52I accept Mr Gallagher's submission to the effect that the offender is remorseful about his actions, in particular the threats he made. 53It is put to me that he was under the influence of alcohol at the time those threats were made to Mr Ward. However, intoxication cannot be a mitigating factor: see Bourke v R [2010] NSWCCA 22, in particular at [26] and [28]. 54I do accept, however, that whilst it is not a mitigating factor, the fact he was under the influence of alcohol might explain why he made those threats in the manner in which he did. 55It is also put, and I accept that he is prepared to undergo rehabilitation, but I do approach that submission with the degree of circumspection to which I earlier referred. 56There is also the issue of multiple offending I need to take into account. The principle was neatly stated by the Court of Criminal Appeal in Cahyadi v R [2007] NSWCCA 1, in particular at [27] in the judgment of Howie J. It seems to me that there must be some substantial cumulation in the matters that I am dealing with properly applying with the principles enunciated by the Court of Criminal Appeal in Cahyadi and a significant number of authorities that have been handed down by the Court of Criminal Appeal since that decision was handed down. 57I also must comply with ss 3A and 5 of the Crimes (Sentencing Procedure) Act . It is not appropriate for this Court or any other court to impose a sentence of custody unless the Court first of all comes to the conclusion that no other sentence other than custody is warranted. 58I am of the opinion, given the fact of the number of times the offender has been before the Court for driving whilst disqualified, the fact that his record for the driving whilst disqualified charge is an aggravating factor, that no other sentence other than custody is appropriate. Likewise, given the need for general deterrence and what the Court of Criminal Appeal has said about the need for deterrent sentences, in respect of the threaten witness charge, I am also of the opinion that no other sentence other than custody is appropriate. 59I place on record that I have, in the luncheon adjournment, consulted the Judicial Commission Statistics kept in respect of charges contrary to s 326. There is a small sample of fourteen. Six of those received sentences of full-time custody, and five received suspended sentences. Accordingly, eleven out of fourteen matters were dealt with on the basis that the Court concluded that not other sentence other than custody was appropriate. 60As has been observed by the Court of Criminal Appeal, and in particular Howie J on a number of occasions in the last twelve months, sometimes the statistics can be misleading and I am of the opinion, with all due respect to my brethren, that the sentences imposed for that charge of threaten witness as indicated in the statistics would indicate that the sentencing may well need some upward movement. 61I do, however, indicate that I have slightly varied the sentence from what I was prepared to impose in the interests of consistency of sentencing within the jurisdiction. 62There is also the issue of special circumstances. I am not persuaded that I should find special circumstances to any significant degree on the issue of rehabilitation, but as I indicated to Mr Gallagher in the course of submissions, there is high authority for the proposition that the requirement for accumulation can of itself be sufficient ground for finding special circumstances. 63I am prepared to make some variation, albeit modest, on the issue of rehabilitation, but more particularly I am able to find special circumstances, it seems to me, because of the need to cumulate the two sentences. 64I have indicated to the parties I am proposing to deal with the drive whilst disqualified by way of a fix term. That really is a matter of pragmatism as there must be some cumulation, it seems to me. 65I am going to impose a fixed term, as I am going to impose by way of substantial cumulation a non-parole period in respect of another charge. 66Anton Karel Tocin, in respect of the charge that you on 25 November 2010 at Leeton in the State of New South Wales did drive a motor vehicle on a road-related area during a period of disqualification, you being a person who was disqualified from holding or obtaining a drive licence, you are convicted. 67Consequent upon that conviction I sentence you to a fixed term of imprisonment of eight months to commence of 5 April 2011 and to expire on 4 December 2011. 68I impose a disqualification of three years from 29 December 2012 and I quash any habitual offender's declaration. 69I indicate that the starting point was one of twelve-month imprisonment by way of fixed term from which I have deducted twenty-five percent discount for the utilitarian value of the plea. 70In respect of the charge that you on 5 April 2011 at Leeton in the State of New South Wales did threaten to cause injury to Liam Ward on account of you believing that he, Liam Ward, may be called as a witness in judicial proceedings, you are likewise convicted. 71I sentence you to a non-parole period of nine months to commence on 5 September 2011 and to expire on 4 June 2012. Thereafter I specify a balance of term of fifteen months to commence on 5 June 2012 and to expire on 4 December 2010. Parole is to be unsupervised. 72I indicate that may starting point there was twenty months imprisonment from which I deducted twenty-five percent discount for the utilitarian value of the plea meaning a total of fifteen months. 73I have found special circumstances for the reasons I have given. 74In the event of any appeal on sentence, I direct a transcript of these remarks be taken out and kept with the papers. 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: 24 August 2011