Crown appeal: Yuksel
33Grounds 2 and 3 of the Crown's appeal concerned Yuksel. It was contended that his Honour had failed to have proper regard to R v Henry and erred by imposing a suspended sentence. These grounds were addressed together. The essence of the Crown's submission was that, having regard to Henry, the circumstances of Yuksel were such that a suspended sentence was not within a proper sentencing range. Those circumstances were said to be his criminal record; his lack of insight concerning the impact of the offence on the victims; his attempted minimisation of his role; and the fact that he stood to be sentenced for a further offence in the form 1 involving a separate victim.
34I have described above the manner in which his Honour addressed the judgment in Henry. In my view Henry had a much diminished significance to the circumstances of Sirtlan. The common category of case to which Spigelman CJ referred to in Henry at [162] was one involving the use of a "weapon like a knife, capable of killing or inflicting serious injury". As I have noted, the Crown conceded that it could not demonstrate beyond reasonable doubt that Yuksel was aware that his co-offender was in possession of a knife. A number of decisions of this Court have emphasised the importance when applying Henry, of the significance of whether or not the relevant offender was armed (or aware that their co-offenders were so armed): R v Black [2001] NSWCCA 41 at [13] (per James J with whom Whealy JA agreed); R v Perese [2001] NSWCCA 478; (2001) 126 A Crim R 508 at [25] (per Hulme J) and at [66] (per McClellan J; with whom Beazley JA agreed); and Frahm v R [2009] NSWCCA 249 at [14] - [19].
35It can be accepted that a number of the other factors identified by Spigelman CJ in Henry were present in Yuksel's case. However, given the differentiating factor concerning the presence of a weapon and his Honour's advertence to the decision in Henry I do not consider that there is any error per se that arises from the imposition of a suspended sentence. As with Sirtlan I do not conclude that his Honour failed to take into account or misapplied Henry.
36The balance of the Crown's points under this ground do not in my view demonstrate error on the part of his Honour. Yuksel's criminal record was not good but his Honour considered that. The question of his supposed "lack of insight" into the impact of the offence on the victims is a matter I will address in relation to ground 4 but, in short, his Honour found to the contrary. The offence on a form 1 was clearly a matter adverse to him (see Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [42]). However, given that the offence on the form 1 related to the same incident as the offence to which Sirtlan pleaded guilty, I do not consider that it was a matter that demanded a sentence of full-time imprisonment.
37In my view, his Honour's finding that the prospects of Yuksel's rehabilitation was high, that he was making good progress in that rehabilitation and that he suffered from a depressive illness in respect of which he required ongoing treatment were the specific features which, when taken with the other circumstances including his lesser role in the offence, meant that his Honour's decision to suspend the sentence was not erroneous.
38I reject grounds 2 and 3.
39Ground 4 contended that his Honour erred in finding that Yuksel was "genuinely remorseful". It was contended that that finding was not open on the evidence. Yuksel did not give evidence before his Honour. The psychiatric report that was tendered on his behalf recorded him as "feeling deeply ashamed of his behaviour" and that he "appeared to be generally contrite and remorseful for his actions". A reference from his cousin, a former legal practitioner who later became a financial advisor, recounted that he had spoken with Yuksel and that he was "ashamed and regretful of his conduct". Against this, the probation and parole report recorded that he had "displayed limited empathy for the victims of the offences and stated he believed they had suffered no harm because they were not injured". It further stated that he had "minimised his involvement and the nature of the offences and indicated he believed the victim had voluntarily surrendered his property".
40His Honour noted the competing evidence as to his expressions of remorse. His Honour concluded that "on balance, in the case of Mr Yuksel I am prepared to accept that he is genuinely remorseful".
41His Honour was faced with a conflict of the evidence. I do not see any error on his Honour's part in the manner in which he resolved that conflict. The resolution of the conflict was undertaken in a context where his Honour received and acted upon evidence which demonstrated that Yuksel had high prospects of rehabilitation and was already making strong efforts towards rehabilitating himself.
42The Crown relied on the comments of Basten JA in R v Thomas [2007] NSWCCA 269 at [19] that "a finding of genuine remorse should not be made lightly, especially in circumstances where there are contra-indications". This statement was preceded by the following recitation of the evidence concerning the contrition shown by the offender in that case (at [19]):
"The failure of Mr Thomas to give evidence to that effect himself in the witness box; his continued adherence, through many days of hearing, to an implausible story which was disbelieved, but constituted a significant attempt to diminish his responsibility for the offence, and the fact that he committed a further serious offence less than a month later, all require consideration in assessing the genuineness of remorse and the extent to which his expression of remorse can mitigate an otherwise appropriate sentence."
43It is not surprising that these matters caused his Honour to doubt the finding of remorse that appears to have been made by the sentencing judge in that case. As it turns out Basten JA did not overturn that finding.
44In this case, there is nothing to suggest that the finding of remorse made by his Honour was made "lightly" (cf Thomas at [19]). The task of overturning a finding of primary fact on such a matter by a sentencing judge is a difficult one. The challenge was not made out here.
45I reject ground 4.
46Ground 5 contends that "The disparity between the sentence imposed on the respondent Yuksel with that of his co-offender offends parity principles."
47During argument on this ground I queried whether an asserted disparity between co-offenders is a matter that can be relied on by the Crown as demonstrating error in the absence of any complaint by either co-offender that the sentence gave rise to a "justifiable sense of grievance" (Postligione v R [1997] HCA 26; (1997) 189 CLR 295). In response the Crown referred the Court to Green v The Queen; Quinn v The Queen [2011] HCA 49; (2001) 86 ALJR 1. At [35] to [46] of Green and Quinn French CJ, Crennan and Keifel JJ discussed the circumstances in which the Court of Criminal Appeal might refrain from interfering with an otherwise inadequate sentence less such intervention would create a risk of disparity with a sentence imposed upon another offender. It was thus concerned with the application of the parity principle at the point in a Crown appeal at which the Crown, having established error, seeks the resentencing of a respondent and to defray the exercise of the residual discretion not to intervene. However, the current case is different. This ground involves the Crown asserting that there is error per se by reason of the disparity of treatment between co-offenders. That was not the situation considered in Green and Quinn.
48The difficulty with this ground is highlighted by a concession the Crown made in its written submissions that "[i]t is acknowledged that the principle of parity should not be used to increase an otherwise appropriate sentence or to disadvantage an offender" citing R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1. If that concession is correct then in terms of establishing error this ground goes nowhere. If the sentence is "otherwise appropriate" then a lack of parity complained of by the Crown alone should not lead to either offender having their sentence increased. If the sentence is not "otherwise appropriate" then error has otherwise been established and the question of disparity need only be addressed at the same point as it arose in Green and Quinn.
49It may be that the discussion in Green and Quin at [28] to [34] provides support for a broader principle that can be invoked by the Crown. It also may be that the existence of a disparity in sentences may point to the existence of some other form of error on the part of the sentencing judge. However, it is not necessary to express any final views on this for two reasons.
50First, his Honour did not impose sentences that were relevantly disparate in the sense used in the authorities. His Honour stated that "[i]n terms of parity there are ... considerable differentiating features" between the two respondents. His Honour was correct to so conclude. Yuksel's involvement in the offences was less than that of the Sirtlan. Sirtlan was in possession of a sharp instrument whereas the Crown conceded they could not demonstrate that Yuksel was aware that a weapon was used. While Yuksel was not a passive participant in the offence, it was Sirtlan who directed the robbery and had the much greater role in threatening the victims. Yuksel's criminal record was not as extensive as that of Sirtlan. Sirtlan committed the robbery while he was the subject of a control order and a bond to be of good behaviour. There were no such restraints applying to Yuksel. There was a finding of contrition made in the relation to Yuksel. There was no such finding with Sirtlan. Yuksel was found to have high prospects of rehabilitation. Sirtlan was found to only have "good prospects" of rehabilitation and he would require help in overcoming his psychiatric problems and anger management issues.
51Second, I have already noted the concession made by the Crown that the principle of parity should not be used to increase an otherwise appropriate sentence. It follows from my analysis of the remaining grounds of appeal in relation to Yuksel that I consider that he was subject to an "otherwise appropriate sentence".
52I reject ground 5.
53Ground 6 of the appeal, so far as it concerns Yuksel, was in the same terms as that concerning Sirtlan, namely, it was contended his Honour failed to properly assess the objective seriousness of the offence and gave undue weight to the subjective circumstances of the respondents. I have partly addressed that in dealing with this ground so far as it concerns Sirtlan and I repeat those observations.
54In relation to Yuksel it was contended by the Crown that his Honour only considered the matters personal to him in deciding to suspend his sentence. It was said that his Honour failed to consider the objective circumstances of the offence before concluding a suspended sentence was appropriate (Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [85] to [86] per Kirby J). The short answer to this is that, on my reading of the sentencing judgment, his Honour did not so confine himself before concluding that a suspended sentence was appropriate.
55I reject ground 6 so far as it concerns Yuksel.
56Ground 7 has been addressed above in relation to Sirtlan. Those observations apply equally to Yuksel.
57Ground 8 of the appeal so far as it concerns Yuksel asserts that his sentence was manifestly inadequate. Most of the submissions on this ground have been addressed in rejecting grounds 2 and 3.
58The only additional argument raised with this ground is the suggestion that by imposing a sentence of one year and 51 weeks, his Honour tailored the sentence to allow him to suspend it. This was said to be erroneous because his Honour was required to first give consideration to what a proper sentence should be independently of the question of whether the sentence be suspended (citing R v Zamagias [2002] NSWCCA 17 at [26] and [30]). Although expressed in terms of manifest excess this appears to be an assertion of a separate form of error. While there is some force in the submission I do not think it should be accepted. Prior to the discussion in the judgment of suspending the sentence, his Honour rejected a submission that the period of imprisonment "should be as minimal as might qualify him for an intensive correction order". Having rejected that submission I do not consider that his Honour then adopted the same approach with a suspended sentence.
59Otherwise for the reasons I have outlined in rejecting the other grounds, especially grounds 2 and 3, I do not consider that the sentence was manifestly inadequate. A suspended sentence can in some circumstances be a "sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender" (Zamagias at [32] per Howie J; with whom Hodgson JA and Levine J agreed).
60I reject ground 8.