R v Hakan YUKSEL; R v Yavuz Selim SIRTLAN

The Offences 5There was no dispute before his Honour as to the facts surrounding the offences. At about 3.45 am at Strathfield on 22 January 2011 the two victims commenced walking towards Strathfield Railway Station. They were both young men aged 21. They were initially harassed by the respondents who were travelling in a car. The victims kept walking and came to a pedestrian walkway where they were confronted by the respondents. The respondents had alighted from their vehicle and stood directly in front of them within a short-arms distance. 6Sirtlan held a silver-bladed object at waist height in front of one of the victims. The blade was 8 cm long with a handle concealed in his hand. It was conceded by the Crown that it could not prove that Yuksel was aware of the bladed object. 7Sirtlan said to the victims "Give us everything". One of the victims handed him his iPhone. He then pulled his wallet out and started to give Sirtlan the cash within it. Sirtlan said to him "You have 5 seconds" and grabbed his arms. In fear that victim offered his wallet which contained $10.00 cash, a New South Wales drivers' licence, a Commonwealth Bank of Australia Bankcard and various other personal effects. Sirtlan snatched the wallet from his hand. 8Yuksel was standing in front of the other victim. In fear for his safety, that victim took out his wallet and showed Yuksel that he only had coins. Sirtlan reached over and snatched the wallet from his hand. This wallet contained the victim's drivers' licence, his Commonwealth Bank of Australia Bankcards and $5.00 in coins. Yuksel commenced frisk searching this victim. He reached into that victim's right trouser pocket and removed his iPhone. 9The respondents left the scene in the vehicle. One of the victims recorded its registration number and reported it to the police. The vehicle was registered to Sirtlan. The respondents were apprehended the same day. One of the victims identified Yuksel. Sirtlan was refused bail and remained in custody until sentenced by his Honour on 19 September 2001. Yuksel obtained bail five days later after being apprehended. Both pleaded guilty at the earliest opportunity and were given a 25% discount.

The Respondent Sirtlan 10At the time of the offence Sirtlan was 19 years of age. He was born in Turkey and came to Australia at a young age. His Honour recorded that he had a number of convictions for prior offences including assault, robbery armed with an offensive weapon and assault occasioning actual bodily harm. His Honour found that his offending conduct was exacerbated because it was engaged in while he was the subject of a control order and a good behaviour bond. His Honour noted that his offending behaviour had continued while he had been in prison where he committed offences of assault, fighting, avoiding correctional centre routine, damaging property and defacing a cell. 11A psychiatric report concerning Sirtlan was tendered at the sentencing hearing. It recorded an incident in year 11 when he was stabbed. It had led to the emergence of a number of psychiatric symptoms. His Honour accepted the psychiatrist's conclusion that Sirtlan was suffering from a severe depressive condition but that his symptoms had begun to show some signs of amelioration. His prognosis was said to be positive although it was considered essential that he continue to receive psychiatric treatment. 12Sirtlan gave evidence before His Honour. He expressed remorse for his actions but his Honour did not accept that he was genuine. However, his Honour found that there were "good prospects" for his rehabilitation although he would require "a lot of help to overcome his psychiatric problems and his anger management issues". On this basis his Honour found that special circumstances existed.

The Respondent Yuksel 13At the time of the offence Yuksel was also 19 years of age. His criminal record was not as extensive as Sirtlan's, although it included an offence of recklessly wounding while in company. For that offence he had been sentenced to periodic detention. 14A psychiatrist's report concerning Yuksel was also tendered. It described an incident a number of years prior where he had been the subject of an assault which had a psychological impact on him. His Honour accepted that he suffered from a depressive illness in respect of which he required on-going treatment. 15His Honour was persuaded that Yuksel was genuinely remorseful for his conduct. This finding is contested by the Crown and that challenge is addressed below. His Honour found that Yuksel had made good progress towards rehabilitating himself. His behaviour at home had improved and he was in full-time employment. His Honour found that his prospects of rehabilitation were high.

Crown Appeal: Sirtlan 16I will first address the grounds of appeal so far as they concern Sirtlan. Ground 1 of the appeal asserts that his Honour failed to properly consider and apply the guideline judgment of R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346. In Henry at [162] Spigelman CJ identified a category of case by reference to seven criteria. This category of case was found to be "sufficiently common" to warrant the determination of a sentencing guideline. At [165] his Honour found that "sentences for an offence of the character identified above should generally fall between 4 and 5 years for the full term". 17Criteria (vii) identified by Spigelman CJ at [162] of Henry was that there was a "plea of guilty, the significance of which is limited by a strong Crown case". In R v Kelly [2010] NSWCCA 259 at [52] Kirby J referred to the seventh criteria as assuming a 10% discount for a late plea. His Honour calculated that, if the range of 4 to 5 years stated in Henry was adjusted to a case that involved a discount of 25%, then the adjusted range became one of 3 years to 3 years and 9 months. 18Spigelman CJ described the status of a guideline judgment in Henry at [29] as follows: "A guideline judgment on the subject of sentencing should not lay down a requirement or anything in the nature of a rule. The failure to sentence in accordance with the guideline is not itself a ground of appeal. Guidelines are not rules of universal application. They may be departed from when the justice of a particular case requires such a departure." 19Subsequent to the decision in Henry, ss 36 to 42A of the Crimes (Sentencing Procedure) Act came into force: see R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 at [38] - [61] (per Spigelman CJ). These provisions operate to mandate that a guideline judgment be "taken into account": Whyte at [63] to [67] (per Spigelman CJ). However nothing in those provisions or the judgment in Whyte undermines the effect of the passage from Henry at [29], extracted above. 20In his judgment on sentence his Honour stated that the sentences were to be considered "having regard to the guideline judgment of R v Henry" and noted the "features of these offences which correspond with those in the guideline judgment". In the case of Sirtlan, the sentence imposed was within the range stated in Henry as adjusted in Kelly. Although Sirtlan's antecedents were worse than that specified in criteria (i) of the category of case referred to by Spigelman CJ ("no or little criminal history"), he had the benefit of a positive finding in relation to the prospects of rehabilitation ("good prospects") and an incident in his past which warranted some leniency (being the victim of a stabbing). In those circumstances I do not consider that the Crown has established that his Honour failed to take into account Henry or misapplied it. 21It was further argued on behalf of the Crown that a misapplication of Henry was demonstrated by the imposition of a non-parole period of 18 months. It was submitted that this was a significant variation from the non-parole period that would ordinarily follow from the range identified in Henry as modified in Kelly. However, the non-parole period of 18 months was determined in the context of a finding of special circumstances. As counsel for Sirtlan pointed out, there is no challenge by the Crown to that finding. His Honour's finding in that regard does not reveal any failure to take into account, or misapplication of, Henry. 22I reject ground 1. 23Ground 6 of the appeal concerning Sirtlan (which was also applicable to Yuksel) asserted that his Honour erred by failing to properly assess the objective seriousness of the offence and by giving undue weight to the subjective circumstances of each offender. 24In his judgment his Honour stated "these offences were objectively serious although they fall towards the lower end of the scale of seriousness for this type of crime". The Crown contends that this was erroneous. It submits that, although there was limited planning for the offence, it was not some chance encounter on a street or train and involved the respondents following the victims in their vehicle. The Crown pointed to the vulnerability of the victims given that the offences were committed in the early hours of the morning on an isolated street. It contends that the objective seriousness was increased by the fact that there were two victims. The Crown submitted that a review of the sentencing judgment reveals that his Honour was overwhelmed by the weight that should be given to the subjective features of the respondents, rather than the objective seriousness of the offence. 25I do not consider that there was any error on his Honour's part in concluding that the offences were objectively serious, but were "towards the lower end of the scale of seriousness" or in not making any further findings as to the relative seriousness of the offences. The Crown's submissions on this topic appeared to assume that a case with the seven features identified in Henry is in the middle range of seriousness for this type of offence. Henry is silent on that topic. Instead, Henry identified a common category of case for which it was appropriate to establish a guideline. In that regard, the seven criteria referred to by Spigelman CJ in Henry at [162] travel beyond objective features of the offence and include matters subjective to the offender (see criteria (i) and (vii)). Consistent with the passage from Muldrock v R [2011] HCA 39; 244 CLR 120 at [27], those are not matters that bear upon an assessment of the "objective seriousness" of the offence. 26It is otherwise doubtful whether there was an obligation upon his Honour to undertake some task of classifying the particular offence by reference to it being in the "low, middle or high range of objective seriousness" (R v Koloamatangi [2011] NSWCCA 288 at [19] per Basten JA; with whom Adams and Johnson JJ agreed). In any event the features pointed to by the Crown do not undermine his Honour's assessment. 27I reject ground 6 so far as it concerns Sirtlan. 28Ground 7 contends that his Honour failed to have regard to specific and general deterrence. In his judgment, his Honour recited s 3A of the Crimes (Sentencing Procedure) Act, which refers to those objectives. His Honour's reference to the "objectively serious" nature of the offence and to the judgment in Henry re-enforces that he was completely cognisant of those objectives. 29In my view there is no substance in ground 7. 30Ground 8 contends that the sentence was manifestly inadequate. The essence of the Crown's submission is that the circumstances surrounding Sirtlan's offence were within the category of case identified in Henry as modified in Kelly with the aggravating factors of his criminal history and the fact that they were committed while he was subject to a bond and a control order. These points have force but I do not consider that they rise to the level of demonstrating that the sentence imposed by his Honour was manifestly inadequate. I otherwise repeat the comments I have made above in rejecting ground 1. 31I reject ground 8. 32It follows that I consider that the appeal so far as it as concerns Sirtlan should be dismissed.

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.

Minor Errors 61It was common ground that his Honour erred in selecting a start date for the sentence imposed on Sirtlan which was one day prior to the date of his arrest, ie 21 January 2011, instead of 22 January 2011. It was also common ground that his Honour erred in fixing a commencement date for Yuksel's suspended sentence when such a date should only be determined if and when a court makes an order under s 99(1) of the Crimes (Sentencing Procedure) Act. At the hearing of the appeal it was agreed by the parties that, if the Court did not otherwise interfere with the sentences imposed, the appropriate course to deal with these errors was for application to be made to the District Court under s 43 of the Crimes (Sentencing Procedure) Act. In light of the conclusion of the Court concerning the appeals it will be necessary for the parties to make that application.

Conclusion 62The orders I propose are: (1)The Crown appeal against the sentence imposed on the Respondent Yavuz Selim Sirtlan be dismissed; (2)The Crown appeal against the sentence imposed on the Respondent Haksan Yuksel be dismissed. 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: 09 May 2012