R v Tuncbilek

LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0507; 03/11/0734 FILE NUMBER(S) : LOWER COURT Berman DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60506/03

SPIGELMAN CJ WOOD CJ at CL SIMPSON J

Tuesday 11 May 2004 REGINA v Tarkan TUNCBILEK Judgment 1 SPIGELMAN CJ: I agree with Simpson J. 2 WOOD CJ at CL: I have read in draft form the judgment of Simpson J. I agree with the orders proposed, and with the reasons of her Honour. 3 SIMPSON J: The applicant seeks leave to appeal against the asserted severity of two sentences imposed upon him in the District Court on 11 September 2003 following his pleas of guilty to a charge of assault with intent to rob whilst armed with an offensive weapon (an offence against s97 of the Crimes Act 1900) and an offence of aggravated assault with intent to take or drive a motor vehicle, this offence having been committed in company (an offence against s154C(2) of the Crimes Act and shortly known as "aggravated car-jacking", the circumstance of aggravation being that it was committed in company). The first count carries a maximum penalty of imprisonment for twenty years, the second imprisonment for fourteen years. On the first count, Berman DCJ sentenced the applicant to imprisonment for a fixed term of seven years, dating from 3 March 2003 and expiring on 2 March 2010. On the second count, he sentenced the applicant to imprisonment for seven years with a non-parole period of four and a half years. He made this sentence partially concurrent with the first, to commence on 3 March 2006. There was therefore an accumulation of three years. This resulted in an effective combined sentence of ten years with a non-parole period of seven and a half years.

facts 4 The first offence was committed at about 3.45 am on the morning of 4 February 2003 in Jones Street, Ultimo. The victim, a male, was walking to the Star City Casino where he was employed. The applicant attempted to engage him in conversation, which the victim initially ignored. He began to answer the applicant's questions and eventually asked the applicant's name, which the applicant replied was "Tony". The applicant then produced a small silver coloured pistol and pointed it at the victim. He told the victim he was going to kill him and demanded money and the victim's wallet. The victim told the applicant he had no money. The applicant asked for twenty dollars. The victim repeated that he had no money. The applicant told the victim not to tell anybody what had happened and left the scene. 5 During the encounter the victim was very fearful for his life and thought he was going to die. 6 The applicant was arrested on 3 March 2003 when the victim saw him at a retail store and contacted police. He had previously seen him on two other occasions in the same vicinity. 7 The second offence occurred during the afternoon of 19 February 2003 in Park Road, Five Dock. The applicant was in company with a male called Corey Brough. The victim, a fifty-four year old woman, was parking her motor vehicle and was about to alight when the applicant opened the driver's door, reached inside and pulled the victim out of the car by her right arm. He sat in the driver's seat. Brough struggled with the victim, attempting to take possession of her car keys. He punched her in the head area a number of times. Some (apparently relatively minor) injury was caused to the victim. The applicant eventually obtained the keys from the victim and returned to the driver's seat; with Brough occupying the passenger's seat, he drove off. From some items left at the scene DNA evidence was obtained. This allowed police to identify the applicant and Brough as the perpetrators. On 1 July 2003 the applicant was interviewed and admitted his involvement, but said that he had given the car to an unknown person, and had no knowledge of its then whereabouts, or of the disposition of items the property of the victim that had been left in the car. In fact, on 24 February 2003 the car had been located, burned out, in the Ultimo area.

subjective circumstances 8 The applicant was born on 24 August 1977 and was twenty-five years of age at the time of the offences. He was born in Sydney of Turkish parents, the youngest of five children. He had had a disrupted childhood. His father was a violent and unforgiving man. The applicant exhibited significant behavioural problems from an early age, and was diagnosed with attention deficit disorder. He spent some time in an adolescent psychiatric unit. Thereafter he spent a good deal of his adolescence in juvenile detention centres. 9 He remains close to his mother and one sister. His father died in 1992, when the applicant was fifteen. Despite his father's violent treatment of the applicant, his death is said (in a psychiatric report) to have affected the applicant badly. He has been in a relationship from which he has an eight year old son, but the relationship has suffered strain as a result of the applicant's incarceration. 10 He has used marijuana since the age of twelve, and alcohol since the age of thirteen; he began to use heroin (to which he was introduced while in custody) at eighteen. His heroin habit at one time cost $400 per day. He undertook a course of Naltrexone, and counselling while in gaol, and claimed to have abstained from heroin use for fourteen months. He was, however, using amphetamines. 11 His behavioural problems have continued, resulting in his being placed in segregation whilst in custody. He has recently been diagnosed as having a mild intellectual disability. 12 In 1997, while in custody at Goulburn, he attempted suicide by hanging. As a result he spent some time in the psychiatric unit at Long Bay. Whilst in custody he has undertaken some rehabilitative courses, including anger management, conflict resolution and a violence prevention program. The above history is drawn from a pre-sentence report and a psychological report, both of which were before the sentencing judge. 13 It will be apparent from the history recounted above that the applicant has a criminal record which has resulted in his incarceration on a number of occasions. He has been found guilty, as a juvenile, of robbery in company, and as an adult of armed robbery (five offences) and various offences involving assault. He was released on parole on November 2002 in relation to a conviction for armed robbery, and was still subject to parole conditions at the time of the present offences.

the sentencing proceedings 14 The applicant did not give evidence on the sentencing proceedings. His older sister gave evidence. She confirmed much of the history I have extracted from the pre-sentence and psychological reports. She gave evidence of considerable family support for the applicant, to the extent of their being willing to relocate themselves, with him, to another country or another state, in order to separate the applicant from the unsatisfactory associations into which he has fallen.

sentencing remarks 15 Berman DCJ recited the facts of each offence, and the subjective matters outlined in the evidence of the applicant's sister, and the reports. He referred to a claim, made from the bar table, that the pistol was no more than a toy, and noted that there was no evidence to the contrary. He referred to the principle of general deterrence, but considered, in the circumstances of the case, that that sentencing objective was of less significance than it sometimes is. This was because of the effect of the diagnosis of attention deficit disorder, and the principles stated in R v Scognamiglio (1991) 56 A Crim R 81 and R v Fahda [1999] NSWCCA 267, (unreported, 31 August 1999). He took a different view of personal deterrence, considering that there was "a substantial need" for the application of that sentencing objective. 16 He held that the pleas of guilty were both entered at the earliest available opportunity and stated his intention of discounting each sentence by 25% in consequence. He also treated the pleas as some evidence of contrition. 17 His Honour declined to find special circumstances within the meaning of s44(2) of the Crimes (Sentencing Procedure) Act 1999 (the "Sentencing Procedure Act") warranting departure from the ratio between the non-parole period and the balance of the term of the sentence specified by that sub-section. He did this because he saw no real promise of rehabilitation. He said that the terms of imprisonment that he proposed to fix would afford the applicant ample time to rehabilitate himself, with the assistance of the Probation and Parole Service, if he chose to do so. He proceeded to fix the sentences already mentioned. This resulted in a total effective term of imprisonment of ten years with a non-parole period of seven and a half years. In structuring the sentence imposed in relation to the second offence, he did in fact vary the statutory proportions but only because of the accumulation of the sentences, and in such a way as to restore the statutory proportions in the overall effective terms.

grounds of appeal 18 As amended, and as finally argued, there were four grounds of appeal, pleaded as follows: "Ground 1: The sentences imposed upon the applicant were manifestly excessive. Ground 2: His Honour erred in not finding special circumstances (other than because of accumulation) in order to further vary the proportion between the non-parole period and the total sentence. Ground 3: His Honour erred in not taking into account the standard non-parole period for the offence of aggravated car-jacking. Ground 4: The disparity between the applicant's sentence and that of his co-offender is such as to leave the applicant with a justifiable sense of grievance."

count one 19 Although, in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 this Court promulgated a guideline sentence of a full term of between four and five years, in respect of offences of armed robbery, it did so in the context of a profile of the offences and offenders to whom it was intended that the guideline would apply. This was stated as follows: "(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." 20 The submissions put to the Court on behalf of the applicant relied upon the guideline. Having regard to the applicant's age and his criminal history (including five prior offences of the same kind), the Henry guideline is of no more than peripheral relevance. In the interests of consistency, it may, however, provide a reference point for judges sentencing around robbery offenders who fall outside the guideline. To the extent that it is relevant, the following observations may be made. 21 The finding of the judge in relation to the nature of the weapon means that it could not be said that the crime involved a "weapon like a knife, capable of killing or inflicting serious injury". (This may have been the reality, but it certainly was not the reality as perceived by the victim, who had no way of knowing whether the weapon was real, or a toy. This circumstance therefore affords the applicant some, but not much, comfort.) Further, no property was taken, but this was only because the victim had none to be taken. Also in the applicant's favour is the plea of guilty, entered in what could not be said to be a strong Crown case. So far as the evidence before the Court goes, the only evidence to fix the applicant with responsibility for the attack on the victim was the victim's own identification of him, with all the difficulties such evidence is recognised to entail. The offence took place during the night, the victim (it may be assumed) had not previously seen or known the applicant and the victim had, in his statement to police, described the area in which it occurred as dark. I accept that the utilitarian significance to be attached to the applicant's plea on this count should not be limited by reason of the strength of the Crown case. But it was not - in R v Thomson and Houlten [2000] NSWCCA 309; 49 NSWLR 383 discounts for a plea of guilty were said properly to fall within the range of 10 - 25%. The applicant was given the maximum benefit for the utilitarian value of his plea to this offence. 22 On behalf of the applicant it was argued that, by factoring in the 25% by which the sentence was discounted, it could be seen that his Honour's starting point for this offence was nine years and four months. This is more than double the mid-point of the range postulated in Henry. No specific reason appears why the starting point was so high. A discount for the plea of guilty is already included in the Henry guideline sentence. If the Henry guideline is to used as a reference point (and, if it is, it should not be used as the basis for an arithmetical progression), then it would be inappropriate further to discount the sentence by reference to the utilitarian value of the plea. It is also to be remembered that the guideline sentence in Henry is a full-term sentence, which, ordinarily, would be subject to a non-parole period of about 75%. An offender sentenced according to Henry would reasonably have hopes of release at or shortly after the expiration of a non-parole period of between three years and three years and nine months. Here, the fixed term is approximately double the non-parole period which a Henry profile offender might expect. 23 There were factors that amply justified a substantial increase on the guideline sentence. Most notable of these was that the applicant committed this offence whilst on parole; and, moreover, committed it just three months after his release after serving three and a half years of a six-year sentence imposed for an offence of precisely the same kind, armed robbery. His record also entitled him to no leniency, despite the judge's acceptance of a submission that he was thoroughly institutionalised. But I am unable to accept that they were capable of justifying a sentence at 40% above the top of the guideline range for the total term, and 53% above the top of the range for a non-parole period. (This being a sentence for a fixed term, it is, in my view, appropriate to consider it relative to a non-parole period.) I conclude that the sentence has been shown to have been manifestly excessive.

count two 24 For reasons which will appear in the consideration of ground 3, it is not appropriate to consider the "manifestly excessive" ground in relation to the second offence.

ground 3: second offence - standard non-parole period 25 The second offence was committed on 19 February 2003. On 1 February 2003 amendments to the Sentencing Procedure Act made by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 came into effect. The correct approach to sentencing under the new regime has been fully explained in R v Way [2004] NSWCCA 131, heard on the same day as the present case, and to be delivered concurrently with this judgment. It is unnecessary to repeat what is there said. The amendments substituted a new s44 and introduced a new Division 1A to Part 4 of the Sentencing Procedure Act, and established a new and significantly different regime of sentencing. The effect of the amendments, relevant for present purposes, is twofold. Firstly, s44 now requires a court sentencing an offender to imprisonment for an offence, first to set a non-parole period which is the minimum period for which the offender must be kept in detention in relation to the offence. By implication, the court is then to fix the balance of the term which, by s44(2), must not exceed one third of the non-parole period unless the court decides that there are special circumstances for its being longer, in which case the court is obliged to make a record of its reasons for so doing. 26 Secondly, in relation to certain offences identified in a Table to Division 1A, a "standard non-parole period" is specified. By s54A(2) the specified standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences of that type. By s54A(2) the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences of that kind. An offence against s154C(2) (that is, aggravated car-jacking) is such an offence. The standard non-parole period specified in the Table for that offence is five years. 27 Imposition of a standard non-parole period in relation to any offence in the Table is far from mandatory. S54B(2) requires a court sentencing for a Table offence: "… to set a standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period." 28 By sub-s(4) the court is required to record reasons for departing from a standard non-parole period, either by increasing it or decreasing it. By sub-s(3) those reasons may "only" be those referred to in s21A. 29 Reference to s21A demonstrates that there is considerable breadth in the reasons available to a sentencing judge in determining whether the standard non-parole period, or some other non-parole period, of either greater or lesser duration, ought to be imposed. In effect, it encompasses the entire range of factors ordinarily and traditionally taken into account by sentencing judges: see Way [56] and [57]. 30 In sentencing the applicant, Berman DCJ made no reference to the new sentencing regime. His attention was not drawn to it during the course of submissions. In the result, he imposed a sentence which consisted of a non-parole period, slightly shorter than the standard non-parole period. However, that is slightly deceptive. As this Court has held in Way, the standard non-parole period specified in the Table is taken to be the sentence to be imposed after conviction in a contested trial. The applicant having pleaded guilty, he was entitled to consideration of a reduction by reason of the utilitarian value of his plea of guilty, and was in fact given a reduction of 25%. That means that the starting point, before reduction for the plea, of the non-parole period was six years - a 20% increase on the specified standard non-parole period. No reasons were recorded for the increase, as is expressly required by s54B(4). 31 Had his Honour imposed the standard non-parole period, and then deducted the 25% he allowed for the plea of guilty, then the non-parole period imposed would have been three years and nine months. If he had then applied the conventional formula (which, having rejected an argument that special circumstances within s44(2) existed, he was obliged to do), the balance of the term (subject to any other aggravating or mitigating factors) would have been fifteen months, giving a total sentence of five years, as against the seven years actually imposed. 32 As with the first offence, there are factors (essentially the same factors) that could have justified an increase on the standard non-parole period. But it is difficult to be comfortable in concluding that those factors underlay the reasoning process of the judge. There was no consideration given to where the objective seriousness of the applicant's offence sat in the hierarchy of offences against s154C(2) (see Way, paragraph [72]). 33 Error has plainly been demonstrated in the sentencing of the applicant in relation to the second offence, in the failure to advert to the new sentencing regime. The Crown drew attention to s54B(5) of the Sentencing Procedure Act which provides that the failure of a court to comply with the section does not invalidate the sentence. However, it also acknowledged that, by s101A, failure to comply with a provision of the Act may be considered by an appeal court in an appeal against sentence even if the Act declares that the failure to comply does not invalidate the sentence. I accept the submission on behalf of the applicant, to the effect that the proper interpretation of s54B(5) is to preserve sentences imposed otherwise than in accordance with the Sentencing Procedure Act unless the subject of appeal. S54B(5) does not preclude this Court finding error where there is demonstrated non-compliance with the provisions of the Sentencing Procedure Act. 34 The fact that the applicant committed the offence in company cannot be seen to escalate the seriousness of the crime, because the fact that it was committed in company is the circumstance of aggravation that took the offence out of s154C(1) and placed it in s154C(2). 35 The Crown did not submit other than that this was an offence in the middle of the range of objective seriousness. Senior counsel for the applicant in written submissions conceded that some aspects of this offence placed it "towards the upper end of the range of seriousness". This, no doubt, was intended to include the injury to the victim.

ground 2: special circumstances 36 His Honour, as previously mentioned, rejected an argument that special circumstances existed warranting an extension of the balance of the term at the expense of the non-parole period. He did in fact vary that proportion in relation to the second offence, but only by reason of the accumulation of the sentences, and so as to restore the statutory ratio. 37 It is now submitted that the evidence was such as, not only to warrant, but to demand, a finding of special circumstances. Senior counsel pointed to the applicant's diagnosis of attention deficit disorder, his use of amphetamines which were initially diagnosed for the treatment of the attention deficit disorder, and which his Honour observed to be the path which led him to the later abuse and illegal use of amphetamines; and to the more recent diagnosis of the applicant's intellectual disability. 38 Reference was also made to the psychological report which proposed a lengthy period of supervision on release. 39 These were, in my opinion, circumstances which would have entitled the sentencing judge to make a finding of special circumstances and adjust the length of the non-parole period. However, such a finding is very much within the discretion of a sentencing judge and I am not of the view that, in declining to make such a finding, his Honour fell into discretionary error. I would reject this ground of appeal.

ground 4: disparity 40 Corey Brough, the co-offender in the car-jacking offence, was sentenced by the same judge on 7 November 2003. On that occasion his Honour's attention was drawn to the amendments to the Sentencing Procedure Act and he did consider the imposition of the standard non-parole period, and held that it was an appropriate case its reduction. He sentenced Brough to a non-parole period of three years and a balance of term of two years, making a total term of five years' imprisonment. 41 He paid specific attention to the question of parity, although, of course, on this occasion, he was doing so from the point of view of Brough. He considered that the most important matters distinguishing the two offenders concerned the conditions of Brough's custody, and the varying criminal records. He had earlier referred to the fact that Brough had spent much of his life in custody and had a lengthy criminal record, suffered from some mental health problems and was, most importantly, held in the high risk management unit when in custody and spent most of his time in solitary confinement. Brough was twenty-one years of age at the time of sentencing, an Aboriginal who was the product of a dysfunctional home, and the son of a violent father. He had very limited education, had had only very brief periods of employment, and, like the applicant, had been diagnosed with attention deficit disorder as a child, the treatment of which, his Honour accepted, gave rise to psychiatric problems and drug abuse. It is of some significance that Brough was the perpetrator of the violence on the victim of this offence. 42 Berman DCJ specified two matters as distinguishing the two offenders - the circumstances of Brough's custody, and the variation in their criminal records. The first matter can readily be accepted as a distinguishing feature. There was nothing in the material before the sentencing judge that suggested that the applicant would serve his sentences in anything remotely resembling solitary confinement. The second matter is rather more troublesome. Brough's criminal record was put before this Court in a form which is not easy to follow, but it is plain that there are a number of serious matters of violence and dishonesty on it. True it is that there is only one offence of robbery (which was in company), dealt with in the Children's Court in 1999; but there are a number of offences of assault, assault occasioning actual bodily harm, and one of kidnapping. The majority of Brough's offences were dealt with in the Children's Court which, having regard to his age at the date of sentencing, is not surprising. I am unable to see that the criminal records afforded very much basis for distinction between the two offenders. 43 However, their respective ages, which were not mentioned as a reason, did provide some basis for distinction. 44 Having considered all of the matters put before the Court, I am not satisfied that the sentencing judge was in error in such a way as to engender in the applicant a legitimate sense of grievance, in having sentenced Brough more leniently. 45 I would reject this ground of appeal. 46 However, it is obvious from what I have already written, that it will be necessary for this Court to set aside the sentences imposed and to re-sentence the applicant. Considerations of parity will be borne in mind in undertaking that exercise.

re-sentencing 47 Since, in my view, it will be necessary for this Court to exercise its own sentencing discretion, it is appropriate that it consider itself the question of special circumstances. Against the possibility of re-sentencing, and relevant both to the question of the sentences that should be imposed, and the question of special circumstances, the Court received an affidavit sworn by the applicant's solicitor annexing two reports of an alcohol and other drugs counsellor (Ms Jenny Mackie) of the Department of Corrective Services, the first dated 18 February 2002, and the second dated 25 March 2004. In the earlier report Ms Mackie recounted some of the history to which reference has already been made. She deposed to "a visible change in attitude" in the applicant since his re-incarceration. She observed an increasing interest on the part of the applicant in his family rather than his mates, which she took to be part of "a natural maturing process". She described him as "particularly susceptible to peer pressure" and perceived that it would be in his best interests to be removed from the negative influences of his prison associations and reintegrated into the family environment at the earliest opportunity. She assessed him as having medium developmental difficulties, presenting as dependency and loyalty which was often detrimental to him. 48 In the second report Ms Mackie reported "major changes in his development". She recorded the applicant's efforts on his November 2002 release and the relapse (presumably into drug abuse) which precipitated the offences with which this Court is concerned. She recorded that the applicant had, in January 2003, sought assistance of alcohol and other drug services but that this had not been forthcoming because of a shortage of resources. She described the applicant as "highly remorseful", "totally abstinent" and "unequivocally accepting of personal responsibility for his actions". 49 In the circumstances the applicant will benefit from a somewhat longer than usual period of supervision on his release. Since I have in mind adopting the partial concurrence/ partial accumulation of the sentencing judge, I consider that special circumstances under s44(2) have been made out. The sentences to be imposed should be structured so as to achieve a modest extension of the parole period. 50 In proposing a sentence in relation to the first offence, I bear in mind the Henry guideline (as a reference point only, noting that Henry refers to a head sentence), and the features which suggest that the applicant's sentence should be somewhat greater than the range there specified. Those features are the fact that it is the applicant's sixth such offence, and that it was committed whilst he was on parole for a similar offence. In my opinion, because a plea of guilty is already factored into the guideline sentence, the applicant is not entitled to a further reduction for that reason. However, I also bear in mind that the value to be attributed to his plea of guilty should not be limited by reason of the strength of the Crown case. That is, in any case, consistent with the approach taken since the decision in Thomson and Houlten. As I have already mentioned, the Henry guideline refers to the full term of the sentence, but this must now be translated, by reason of the amendments, so that the commencing point is the non-parole period. 51 Having in mind the sentences I am about to propose, including the degree of overlap, I propose that the applicant be sentenced to a non-parole period of four years, commencing on 3 March 2003, and expiring on 2 March 2007; and a balance of the term of the sentence of sixteen months, expiring on 2 July 2008. 52 In respect of count 2, and bearing in mind what this Court has held in Way as to the breadth of the mid-range of objective seriousness, I have concluded that the offence should be treated as an offence within that range. There are factors pointing towards a longer non-parole period than the standard non-parole period of five years - these being the fact that the offence was committed whilst on parole, and the applicant's history of similar offences - and other factors pointing to a shorter non-parole period - these being the applicant's intellectual disability and attention deficit disorder. Also of some relevance in this respect is the sentence imposed on Brough. (This is, by reason of the last sentence of s21A(1), and, as decided in Way, a permissible consideration.) It seems to me that these factors are evenly balanced and I therefore conclude that this is not a case for departure from the standard non-parole period of five years. However, that period of five years must be reduced by the 25% allowed by the sentencing judge for the plea of guilty. On this basis the applicant would be sentenced on this count to imprisonment with a non-parole period of three years and nine months with a balance of term of one year and three months. That raises for consideration the commencement date of that sentence. Like the sentencing judge, I would structure that sentence so that it is partially concurrent with, and partially cumulative upon, the first sentence. That, however, would result in an effective combined sentence of a total term of seven years with a non-parole period of five years and nine months. That does not achieve the rehabilitative purposes of a variation of the s44(2) proportions. The non-parole period must be further reduced to give effect to the finding of special circumstances. I propose that the applicant be sentenced on this count to a non-parole period of three years commencing on 3 March 2005 and expiring on 2 March 2008, with a balance of term of two years expiring on 2 March 2010. That gives the appearance of an inadequate non-parole period in respect of the second offence, but is done to accommodate the principle of totality, and is necessary because of the need partially to accumulate the second sentence. That approach is authorised by The Queen v Johnson [2004] HCA 15, 30 March 2004. 53 The orders I propose are:

(ii) appeal allowed, sentences quashed; (iii) in lieu thereof, the applicant sentenced to terms of imprisonment as follows: Count 1: non-parole period of three years and six months, commencing 3 March 2003 and expiring on 2 September 2006, with a balance of term of one year and ten months, expiring on 2 July 2008; Count 2: non-parole period of three years, commencing on 3 March 2005 and expiring on 2 March 2008, with a balance of term of two years, expiring on 2 March 2010.

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