Regina v Karaman [2002] NSWCCA 48 | Case summary

Friday 8 March 2002 REGINA v HAYKEL KARAMAN Judgment 1 SHELLER JA: I agree with Grove J. 2 GROVE J: This is an appeal by the Crown pursuant to s5DA of the Criminal Appeal Act. The relevant provision is: "5DA (1) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence imposed on a person that was reduced because the person undertook to assist law enforcement authorities if the person fails wholly or partly to fulfil the undertaking. (2) On an appeal the Court of Criminal Appeal may, if it is satisfied that the person has failed wholly or partly to fulfil the undertaking, vary the sentence and impose such sentence as it thinks fit. " 3 The respondent appeared before Gibson DCJ in the Sydney District Court where he pleaded guilty to offences of robbery in company; aggravated robbery with wounding; stealing a motor vehicle and using an offensive weapon to resist arrest. In sentencing the respondent for the count of aggravated robbery with wounding his Honour took into account the acknowledgement of guilt of the respondent to offences of possessing offensive weapons and goods in custody. The sentences imposed were concurrent and subsumed within the longest term for the offence of aggravated robbery with wounding which was penal servitude for a total term of ten years and six months, expressed in terms of the then applicable Sentencing Act 1989 as a minimum term of seven years and six months together with an additional term of three years. 4 That offence occurred on 25 November 1997 and involved the respondent and two co-offenders entering a pawnshop in Leichhardt for the purpose of robbery. In the course of this a struggle broke out with the proprietors. The respondent was armed with a knife. He used it. The proprietors were brothers. The elder, aged fifty seven, was stabbed in the back of the neck and on the left side of the face. Twenty four stitches were required to suture these two stab wounds. He required treatment for nerve damage. The younger, aged fifty five, was stabbed on the left side of the neck and this wound also needed surgical suture. Passers-by attempted to contain the offenders within the store but they escaped in a vehicle driven by a fourth participant Ahmet Saltan who had been involved, according to a statement later made by the respondent, in selecting the target of the offence, supplying the knife and transporting the respondent and his co-offenders to and from the location. 5 In December 1997 the respondent made a statement to police in which he described the encounter with Saltan in the course of which he told the respondent about a robbery which he, Saltan, had committed at Burwood Liquorland Store shortly before their meeting. Later on 20 May 1998 the respondent made a further statement to police detailing his and his co-offenders, including Saltan's participation in the offences at the pawnshop in Leichhardt. 6 In due course on 22 May 1998 the respondent signed two formal undertakings to the Director of Public Prosecutions offering to give evidence against Ahmet Saltan in one case for offences arising out of the robbery of the pawnshop at Leichhardt and the other concerning the robbery at Burwood Liquorland Store. 7 The sentences were imposed by Gibson DCJ one week after these undertakings were given and his Honour was specifically made aware of them. In the course of his remarks on sentence he said: "I am aware that he is entitled to a significant discount for his promise to give evidence and I have deducted two years from the minimum term I would otherwise have imposed". 8 Ahmet Saltan faced two trials and at each trial the respondent was called to give evidence. 9 The first trial concerned the events at the Leichhardt pawnshop. Asked in chief by the Crown Prosecutor about the participation of Saltan he testified, inter alia: "No, he didn't know what was going on, he was in the car." 10 Later asked whether Saltan had been told about what happened in the shop the respondent testified: "He was clueless on what was going on." 11 Leave was obtained from the presiding judge for the Crown Prosecutor to cross examine the respondent and, questioned about a reference in his statement to police of 20 May 1998 to Saltan supplying him with a knife and an urging him to use it if necessary, he further testified: "To tell you the truth this thing against Mr Saltan is false because at the time I was arrested I was under the influence of heroin and that the police they threatened to viciously assault me if I didn't comply with them so I did so and I went to sentencing and I was still scared, but now it has been three years you know and I have already hurt one family's life and I don't want to wreck another one." 12 Despite this evidence Saltan was convicted by the jury. 13 The second trial of Saltan related to the robbery of Burwood Liquorland. The respondent failed to give evidence of the confession by Saltan allegedly made to him and which had been described in his statement to police on 17 December 1997. In consequence, Saltan was acquitted and discharged on that indictment. 14 The Crown submission is that the sentence imposed upon the respondent should be increased to remove what has now turned out to be an unjustified discount. 15 Counsel for the respondent has contended that the Crown has not established that the respondent was not of assistance in relation to the trial concerning the offence at the Leichhardt pawnshop. He points out that s5DA of the Criminal Appeal Act is not punitive in nature. I agree. As Gleeson CJ said in R v Walters 1994 33 NSWLR 612: "Section 5DA which has a counterpart in Commonwealth legislation, was enacted to overcome a problem which was becoming more common in the administration of criminal justice with the increased frequencies of applications by offenders for discounts in sentencing by reason of their willingness to cooperate with the authorities by, for example, giving evidence against co-offenders." 16 It was submitted that because s5DA is not designed punitively then its purpose is to correct any injustice arising out of any failure to assist. I reject that contention. The evident purpose of the provision is to enable the Court to rectify the situation where a discount against appropriate sentence has been applied to the benefit of the offender on the assumption that he will fulfil the relevant undertaking. 17 Counsel drew attention to s442B of the Crimes Act (applicable when the respondent was sentenced but since repealed and replaced in substance by s23 of the Crimes (Sentencing Procedure) Act 1999) with particular reference to the apparent intent of the Legislature to require consideration of the practical value of assistance: s442B(3)(b). He contended that the actual conviction (concerning the offence at Leichhardt) was "assisted" by the respondent in the sense that cross examination of the respondent on his repudiated statement in the context of applicable Evidence Act provisions provided a factual resource of use to the prosecution. 18 The test to be applied by this Court is not governed by the actual outcome of any trial in which the offender has given evidence. As the extracts from the evidence above set out demonstrate, the testimony of the respondent was obstructive of the Crown case against Saltan and it is a distortion of language to describe his evidence as assistance to the Crown. 19 The respondent's submission ignores the express terms of the undertakings which were, in each case, to give "evidence truthfully and frankly in accordance with" his statements identified above. 20 It can be noted that the jurisdiction of this Court is invoked in terms of the statute when the undertaking is wholly or partly unfulfilled. Short of not testifying at all it is difficult to conceive of a case where the failure to fulfil the undertaking was more complete than in the present. 21 Likewise there was a total failure to give the promised evidence at the second trial of Saltan. It was frankly conceded in a written submission by counsel for the respondent that his evidence was "of no assistance in the second trial". 22 It was further submitted that the respondent's entitlement to discount should be viewed in two aspects of assistance, past and future. The Crown, it was put, received benefit from the information contained in the two statements by the respondent. The discount received by the respondent and in respect of which s5DA of the Criminal Appeal Act is invoked was expressly related by the learned sentencing judge to the "promise to give evidence" which is manifestly future assistance. 23 It was pointed out that the discount assessed by the learned sentencing judge could be arithmetically calculated as approximately 20 percent of total sentence and it was submitted that this was "at the bottom of the range" with particular reference to the remark of Spigelman CJ in R v Chu NSWCCA unreported 16 October 1998 that the customary discount ranged between 20 percent and 50 percent. 24 Gibson DCJ did not find special circumstances justifying departure from the formula set out in s5(2) of the Sentencing Act 1989 and stated that he considered that "the additional term is sufficient to establish his rehabilitation if it can be achieved". It is submitted that this reflects an unduly narrow approach to the question of special circumstances: R v Simpson [2001] NSWCCA 534. Although his Honour made that finding the additional term which he specified did in fact exceed one third of the minimum term. (s 5(2) provided that the additional term must not exceed one third of the minimum term unless the Court decides there are special circumstances). 25 I acknowledge that special circumstances may be found where the respondent is resentenced pursuant to a successful Crown appeal. See for example R v Kama [2000] NSWCCA 23; R v Yucel [2000] NSWCCA 532. Nevertheless in this case where in my opinion the Crown appeal should be allowed for the purpose of restoration of a discount unjustifiably given, it would be inappropriate to find special circumstances arising out of the isolated circumstance that it was a Crown appeal. Nor am I persuaded that the circumstances otherwise lead to a finding of special circumstances in the context of sentencing legislation now applicable. 26 The learned sentencing judge limited his expression relating to the extent of discount for anticipated assistance to the minimum term component of his imposition. Currently applicable legislation (s44 Crimes (Sentencing Procedure) Act 1999) obliges the Court when sentencing an offender firstly to set the term of sentence and secondly to set a non parole period, so that any obscurity as to extent of discount such as might surround an indication relating only to one component of sentence as his Honour did, should not recur. 27 Counsel for the Crown has submitted that the new sentence should be imprisonment for twelve and half years, achieved apparently by addition of the two years mentioned by his Honour to the total term expressed by him, with a non parole period of nine and half years, presumably adding the equivalent years to the former seven and half years minimum term, treating minimum term and non parole periods as interchangeable. Current legislation includes: "44(2) The non parole period must be not less than three quarters of the term of the sentence, unless the Court decides there are special circumstances for it being less, in which case the Court must make a record of its reasons for that decision." 28 Nine and a half years is in fact more than three quarters of twelve and half years. The arithmetical ambiguity obviously arises from the circumstance that his Honour directed his attention and his assessment of two years discount only to the minimum term component of his imposition. 29 The offences by the respondent were serious. There is no need to recapitulate the circumstances which are adequately set out in the remarks on sentence at first instance. It was submitted on behalf of the respondent that in the event of resentence this Court should pay heed to the length of sentence imposed upon a person of the youth of the respondent who was born on 21 July 1978 and who had, prior to the offence of robbery in company for which he was dealt with on the occasion in question, no prior convictions. As the sentence presently stands he would be liable to serve seven and half years prior to parole eligibility. It is also pointed out that his Honour did not give credit to the respondent for forty eight days in custody between 11 July 1997 and his release to bail on 7 August 1997. That period could be taken into account by dating any new sentence from 9 October 1997. 30 Finally, it was submitted that, if this Court determined that the respondent's arguments were not sustained, it should in any event dismiss the Crown appeal as any increase in sentence would provoke a justifiable sense of grievance in the respondent by reason of the milder sentence received ultimately by Saltan for the robbery with wounding at Leichhardt following his conviction by the jury, namely ten years imprisonment with a non parole period of seven years. He was also sentenced to concurrent imprisonment for six months for larceny of a motor vehicle. 31 I intend to propose increase in the respondent's sentence. Any sense of grievance related to Saltan's sentence would not be objectively justifiable. Although Saltan supplied the knife and urged its use, if need be, it was the respondent who chose so to do and in a relative sense the respondent's participation in a most serious element of the major offence was the greater. The respondent was also sentenced to concurrent imprisonment for a separate offence of robbery in company and the offence of robbery with wounding, common to him and Saltan, was aggravated in the case of the respondent by being committed whilst on bail for that other serious crime. 32 Giving such weight as is possible to any circumstances favourable to the respondent and, in particular, to remove any feeling engendered by what I have referred to as arithmetical ambiguity, I am of a view that a sentence of twelve years imprisonment should be substituted for the offence of aggravated robbery with wounding and a non parole period of nine years (being three quarters of that sentence) specified as the non parole period. I would give effect to the respondent's submission concerning date of commencement. 33 Sentences imposed in respect of offences other than that to which I have just referred have expired and it is appropriate to vary sentence only for the count charging the offence mentioned. 34 I would make the following orders:

Regina v Karaman

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