Toksoz v R

THE FACTS

1. An agreed statement of facts was tendered in the sentence proceedings, on the basis of which the sentencing judge found the circumstances of the offending to be as follows (commencing at ROS 3): Between 9pm and 9.30pm on 11 December 2014 the Principal Offender and the Offender drove to the Liverpool Catholic Club (LCC) car park. The Offender drove his car, a blue coloured Mazda CX9 sports utility vehicle (BND 01 J). The Principal Offender was the front passenger of that vehicle. Arrangements had been made to meet others for the purpose of taking drugs, namely MDMA. Venesjarvi was tasked with trying to obtain the drug. The Offender and the Principal Offender had been liaising with Kelsey Rhodes who subsequently approached his friend Kelsey Coakes, a gym attendant at the LCC to see if Coakes could provide the drugs. Rhodes attended the workplace of Coakes while he was working in order to initiate the exchange. Coakes had made enquiries of Venesjarvi as to the availability of the drugs. At that time the latter was training at the gym, Venesjarvi says that he was about to obtain some drugs for himself for the weekend and he would see what he could do. After finishing his shift at the LCC Coakes left with Rhodes and walked outside where they met the Principal Offender and the Offender in the car park. The Principal Offender introduced himself as Adam, he asked whether Coakes had the drugs on him, Coakes informed him that he did not have them and that Venesjarvi would have the drugs. Coakes walked to his vehicle with Rhodes leaving the Offender and the Principal Offender near the Offender's vehicle. Coakes' own vehicle was parked in another car park near a sporting field within the grounds of the LCC. Whilst Coakes was walking towards his vehicle the Offender and the Principal Offender drove alongside Coakes and the Offender's vehicle and offered to drive him to his own vehicle. Coakes declined to get into the car and the Offender and the Principal Offender then returned to the location where they had originally met Coakes. A short time later Rhodes's brother, Zach and a friend approached Coakes in a Mitsubishi utility. They all waited in that location for Venesjarvi to arrive. Venesjarvi arrived at around 10.15pm, he was greeted by the Offender and the Principal Offender who told him that Coakes was nearby. Venesjarvi had never previously met the Offender or the Principal Offender. They got into Venesjarvi's car being a green coloured Mitsubishi Lancer. The Principal Offender sat in the front passenger seat whereupon Venesjarvi showed the Offender and the Principal Offender a package purportedly containing half an ounce of MDMA. They inspected the package and discussed the form of the drug. The Principal Offender expressed dissatisfaction with the form of the drug as it was not what they were expecting. The drugs were in a crystal form rather than pounded MDMA. The Principal Offender also expressed dissatisfaction that Venesjarvi only had half an ounce rather than a full ounce of the drug. At this time, Coakes and the others drove towards Venesjarvi's car, Rhodes indicated to Coakes that he thought that the Principal Offender had a firearm. A short time later the Principal Offender and the Offender exited the car and the three males with Coakes approached the Principal Offender and the Offender, introducing themselves. The Principal Offender introduced himself as Huss but then said "Call me Adam". Venesjarvi continue negotiating with the Principal Offender discussing the purchase of one ounce while the Offender was standing nearby. The Principal Offender said "How can I trust you, how do I know that you won't take off with our money?" Venesjarvi informed the Principal Offender there would be a delay of about one hour to get a full ounce. The Principal Offender became irate and was heard to say "I have been waiting two hours, this is a fuck around". Venesjarvi began to feel uneasy and was about to drive away. The Principal Offender approached Venesjarvi's car slowly, lifted his shirt with his left hand and reached towards the middle of his pants with his right hand pulling out a hand gun that had been secreted down the front of his shorts. At that stage the Offender was also approaching Venesjarvi's vehicle. The Principal Offender pointed the firearm at Venesjarvi's face and Venesjarvi instinctively grabbed hold of the firearm. At this time the Offender was beside the Principal Offender and he also grabbed hold of the firearm. A wrestle over the firearm ensued. Venesjarvi pushed the firearm away and let go in an attempt to drive away, at that time the Principal Offender discharged two rounds from the firearm. One round penetrated and wounded Venesjarvi in the left forearm with a bullet exiting near his elbow. The second round penetrated and wounded him to the left upper chest area narrowly missing vital organs with a bullet exiting under his left armpit. Whilst discharging the firearm the Principal Offender was smiling. Venesjarvi managed to flee the scene in his vehicle. As he drove away the Principal Offender discharged at least one more round towards Venicejarbi's car which did not strike him but struck the car. The Principal Offender then turned the firearm towards Coakes and the three other males. By this stage that group of four had dispersed. Two of the four ran towards the sporting field into darkness. Coakes ran to the Mitsubishi Triton and took cover on the passenger side of the vehicle. The Principal Offender discharged at least one round in the direction of Coakes which penetrated the front windscreen at an angle. A bullet hit Coakes in the right shoulder. Coakes and another male ran away in the direction of the sporting field. The Offender and the Principal Offender then fled the scene in the Offender's vehicle. CCTV captured their movements at 10.27pm and a few minutes later. Venesjarvi drove a short distance about 100 metres to the rear entrance to the LCC, entered the foyer and sought help from staff members. He had discarded the drugs in a nearby hedge. Deborah Gunning, a senior staff member of the LCC, heard five bangs that sounded like popping noises as she was finished her shift at the LCC whilst walking to her car. She then saw a car travelling fast towards the LCC and thought perhaps there was about to be a robbery. She went back to the LCC and saw Venesjarvi who told her what had happened. Police and emergency services attended the LCC which time police observe Venesjarvi lying on the floor directly inside the rear foyer entrance doors. Venesjarvi car was parked not far from the foyer area with a driver's side door open. When police searched the car they observed blood smears on the outside of the driver's door and throughout the interior as well as bullet damage to the windscreen and the front passenger door. Police also observed a trail of blood from the car leading to the entrance where Venesjarvi had approached the LCC. Venesjarvi's car was later seized for forensic examination. A projectile was located inside the front passenger door of the car and there was damage to the front windscreen. Venesjarvi was treated by ambulance at the scene before being conveyed to Liverpool Hospital for treatment. He suffered a gunshot wound with an entrance in the left upper chest with possible exit posterior to the left axilla (armpit). There was a gunshot at the lateral aspect to the forearm with exit wound around the elbow. He suffered a fractured left radius bone and as a result has permanent damage to some nerve fibres. Coakes and the other three males returned to the Mitsubishi Triton and Coakes was then conveyed to Liverpool Hospital for treatment in relation to his wound. As a result of the injury sustained Coakes underwent surgery and the projectile lodged in his right shoulder was surgically removed. Police attended the Liverpool Hospital and were directed to the Mitsubishi Triton. The vehicle was seized and a bullet shaped hole was observed to the front passenger side. No projectiles were located within the vehicle. As part of the investigation following a viewing of the CCTV footage at the scene police approached a hedge near Venicejarbi's car. They retrieved a paper bag which contained 14.22 grams of 73.5% purity MDMA. There were no bullet casings located at the scene and police inferred that a revolver style handgun was used. The Offender's vehicle was captured at 10.29pm travelling in a northerly direction on the M7 (Benera Road at Prestons entry cameras) proximate to the crime scene. At approximately 2.20pm on 19 December 2014, eight days after the offences were committed, the Offender's vehicle entered the car park of the Auburn Tennis Centre. Police had intelligence that the Offender and the Principal Offender were together and followed the Offender's vehicle to that location. The Offender and the Principal Offender exited the Offender's vehicle and were then arrested by police. The Offender and the Principal Offender were cautioned, searched and conveyed to Auburn Police Station. Both offenders declined to participate in a recorded interview. Police then seized the Offender's vehicle. Search warrants were executed by police at the home address of the Offender and the Principal Offender resulting in the seizure of a number of items. At the Principal Offender's address in Glebe police located a loaded Colt .38 revolver with six bullets in the chamber. That firearm was located on the second shelf of a built-in wardrobe. Police also located and seized a number of other items including a magazine loaded .22 calibre pump action rifle which was located in a makeshift wardrobe near the entrance to the unit. A box of ammunition for the .22 calibre pump action rifle and a black and white sock containing four live rounds of ammunition was also located. Several of the items contained the Principal Offender's DNA namely the trigger of one of the firearms, the black and white sock containing the ammunition and the handle of the rifle. At about 4.25pm a search warrant was executed at an address in Kellyville where the Offender resided with his family. Police located and seized registration papers to the Offender's vehicle confirming the vehicle was registered to the Offender. After executing the warrant the police spoke with the Offender and placed a Form of Demand, pursuant to s 14 of the Law Enforcement (Powers and Responsibilities) Act 2002 on the Offender to which the Offender responded "I couldn't tell you, no comment". The Offender was warned in relation to his failure to comply with the form of demand to which he stated "I don't know. I don't remember what I did yesterday. It's been two weeks already, how am I supposed to remember". On 24 December 2014 Venesjarvi participated in two photographic identification procedures where he identified both the Principal Offender and the Offender. It should be noted the Offender asserts and the Crown accepts that at the time the offences were committed by the Principal Offender the Offender was not aware of the fact that the Principal Offender was carrying a firearm.

THE SENTENCE PROCEEDINGS

1. In addressing the sentencing judge in respect of the objective seriousness of the offending, counsel then appearing for the applicant made the following submission (at T7.5): … in effect the accessorial liability alleged against (the applicant) comprising his having driven Goktas in (the applicant's) car from the scene and in effect not alerted authorities to it and provided that sort of harbouring and comfort that the law considers when someone takes the principal offender away, the then they were subsequently arrested about a week later together in the car (emphasis added).
2. Later in the proceedings, and again in the context of dealing with the objective seriousness of the applicant's offending, counsel said (commencing at T11.37): … by contrast our assistance was to drive this man from the scene of the crime and a harbouring - and I say that by reference to some old terminology in the Common Law - a harbouring consisted in effect of not reporting him and really at the end of the day that was the extent of the accessorial comfort provided to the principal offender (emphasis added).
3. Included in the material tendered in the applicant's case on sentence was a letter from the applicant which included the following: I understand and acknowledge that driving someone who had just fired a firearm away from the scene of the offence and also not reporting the crime to the authorities was the wrong thing to do and for this I'm sincerely sorry. … fearing the repercussions from both my co-offender and the authorities I made the decision to not report the crime. I know I made the wrong decision. I made a panicked decision because I thought my choice was limited. … I was worried as to what would happen to me or my family if I told the authorities what my co-accused had done. In hindsight with everything that has happened to me and everything I have lost, I know now I would not hesitate again in going to the police. I would not have placed myself in a similar situation (emphasis added in each case).

Ground 1 - The sentencing judge erred in the assessment of objective seriousness

The findings of the sentencing judge

1. Under the heading "Objective seriousness of the offences" the sentencing judge said the following (commencing at ROS 10): It was submitted by counsel for the Offender that the offences sat at the lowest end of the range of offending of this type. I respectfully disagree. Perhaps that may have been the case if the Offender had merely driven the Principal Offender from the scene of the incident in a state of panic and duress but in addition to that the Offender failed to report the matter to police at any time and when questioned by police as to the Principal Offender's identity he failed to disclose that matter. In considering the seriousness of the offence I bear in mind that the Offender's culpability is accessorial. Although it is an agreed fact that the Offender at some stage attempted to grab hold of the firearm neither party submitted that this act, in any way, elevated the Offender's involvement beyond that of accessory. In considering the question of objective gravity I am mindful of the fact that the elements of the primary offences to which the Offender was an accessory involved the actual use of violence, the discharge of a firearm in public and were committed in the course of a criminal act, namely the supply/purchase of a prohibited drug. The act of the Principal Offender also caused significant physical injuries to the two complainants. I also expect that they suffered emotional harm. So far as the Offender was concerned he was not aware of the fact that the Principal Offender was armed with a firearm and as submitted on his behalf would not have had any reasonable opportunity to intervene so as to avoid harm being caused to the complainants. In my opinion, the objective seriousness of the offences committed by the Offender were all below the midrange. Specifically I find (a) the First Count was the most serious offence but still below the mid-range of offending, (b) the Second Count was less objectively serious than the first and (c) the Third Count was the least serious, towards the low range of criminality (emphasis added).

Submissions of the applicant

1. Counsel for the applicant submitted that the agreed facts did not identify, as part of the applicant's offending, any failure on his part to report Goktas to the police. It was submitted that the applicant had not been charged with concealing a serious offence contrary to s 316 of the Crimes Act 1900 (NSW) ("the Act") and that in these circumstances, the sentencing judge had erred by taking such conduct into account.
2. It was further submitted that the submissions put to the sentencing judge (as set out in [9] and [10] above) were qualified by counsel's repeated use of the term "in effect", and that such submissions were not to be construed as an acknowledgment that the applicant's failure to report Goktas was to be regarded as part of his (i.e. the applicant's) offending.

Submissions of the Crown

1. The principal submission of the Crown was that in advancing this ground, the applicant was seeking to conduct his case in a manner different to that in which it had been conducted before the sentencing judge. In this regard, the Crown drew attention to those aspects of the sentence proceedings set out at [9]-[11] above, and submitted that it was clear that the parties had proceeded on the basis that the applicant's failure to report Goktas' offending to police formed part of the factual basis upon which he was to be sentenced. It was further submitted that the time frame pleaded in the indictment made it clear that the facts encompassed such failure.
2. The Crown submitted that in all of the these circumstances it was clear to all parties that the applicant was being sentenced on the basis that the offending encapsulated the acts of: 1. driving Goktas away from the scene of the crime on 11 December; 2. allowing Goktas to be in his car on 19 December; 3. failing to report Goktas to the police between those two events; and 4. telling the police that he could not remember who was in his vehicle.

Consideration

1. It is obviously important that agreed facts set out the basis on which a person is to be sentenced: R v Palu [2002] NSWCCA 381 at [21]). However in this case, there can be no doubt that when the matter was before the sentencing judge, the applicant, his counsel, and the Crown all understood that the applicant's failure to report Goktas to police formed part of the facts of the offending. To parse what was said by counsel appearing on sentence, and to seek to qualify it, overlooks that understanding, as well as the express terms of the submissions which were put on the applicant's behalf.
2. In these circumstances, this ground is not made out.

Ground 2 - The accumulation of ten months imprisonment upon the appropriate head sentence for count 1 is excessive and has given rise to latent error in the aggregate.

Ground 3 - The sentence is manifestly excessive.

1. These grounds raise common issues and may be conveniently dealt with together. The indicative sentences imposed by his Honour are set out at [5] above.

The reasons of the sentencing judge

1. Under the heading "Approach to determining sentence" the sentencing judge said the following (commencing at ROS 27): I also had close regards (sic) to the principals (sic) of totality as discussed in Pearce v The Queen [1998] 194 CLR 610. Those principals (sic) require me after having arrived at the indicative sentences in relation to each offence to then stand back and consider whether the overall offence to be imposed is just and appropriate and reflects the total criminality involved, (see Postiglione v The Queen [1997] 189 CLR 214 per McHugh, J.) As Justice Hall stated in R v XX (2009) 195 A Crim R 38 at 52, a number of principles concerning accumulation and concurrency apply. Firstly, questions of accumulation, of course, are discretionary, the key concern is that the sentence imposed for each offence is appropriate and the total sentence properly reflects the overall criminality of the offending. In Cahyadi v The Crown [2007] NSWCCA 1 at 27, Howie J stated: "That if the sentence for one offence can comprehend and fully reflect the criminality of the other offence then the sentence ought to be concurrent, because otherwise a risk of the combined sentences will exceed that which is warranted to reflect the total criminality of the offences. If not, the sentences should be at least partly accumulated otherwise there is a risk that the total sentence will fail to reflect the total criminality of those offences." Whether the sentence for one offence can comprehend and reflect the criminality of the other, calls for the identification and evaluation of relevant factors pertaining to the offences including the nature and seriousness of each offence. In this case the three offences are post fact accessorial. They all relate to virtually simultaneous and spontaneous conduct of the Principal Offender. The actual offences relating to this Offender comprise the same acts of harbouring and assisting, et cetera over the same period.

Submissions of the applicant

1. In relation to ground 2, counsel for the applicant expressly accepted that subject to principles of totality, some degree of accumulation of the indicative sentences was warranted. The gravamen of the complaint in respect of ground 2 was that the basis for the degree of accumulation applied by the sentencing judge could not be discerned from his Honour's reasons. It was submitted, in particular, that his Honour had failed to articulate the basis upon which he had concluded that the totality of the offending warranted the imposition of an aggregate term of 2 years and 6 months, which represented an accumulation of 10 months imprisonment upon the indicative sentence for count 1.
2. As to ground 3, counsel for the applicant submitted that having regard to the indicative sentence in respect of count 1, the applicant's subjective case, and principles of sentencing, there was little requirement for any significant accumulation, and that the accumulation adopted by the sentencing judge had given rise to a manifestly excessive aggregate term.

Submissions of the Crown

1. In relation to ground 2, the Crown submitted that the sentencing judge was not under any obligation to explain how considerations of accumulation and concurrence had resulted in the aggregate sentence which was imposed. The Crown further submitted that the sentencing judge had correctly stated the relevant principles, and was clearly mindful of the necessity to apply those principles to his determination of an appropriate sentence. It was submitted that in these circumstances, no reasons over and above those which were given, were required. Further, the Crown submitted that questions of accumulation and concurrence are necessarily intuitive and involve the exercise of a discretion with which this Court would be slow to interfere.
2. As to ground 3, the Crown submitted that when all relevant factors were taken into account, the sentence imposed properly reflected the gravity of the offending. The Crown specifically pointed to the fact that: 1. the applicant was present when Goktas' offending took place, and therefore had full knowledge of its seriousness; 2. the applicant had significantly assisted Goktas by driving him away from the scene; 3. the assistance rendered by the applicant had resulted in a delay in Goktas being apprehended; 4. there was no suggestion that the applicant was motivated by misguided loyalty to Goktas; and 5. the assistance rendered by the applicant was prolonged.
3. The Crown also emphasised that the applicant was being sentenced for three separate offences. Whilst accepting that such offences were committed in quick succession, and that this was relevant to the question of totality, the Crown submitted that it was necessary that the multiplicity of offences be reflected in any sentence imposed. The Crown also pointed to the fact that there were two separate victims of the principal offences, one of whom had received two gunshot injuries.
4. Finally, the Crown submitted that there is a significant public interest in deterring people from assisting the perpetrators of serious offending and that accordingly, general deterrence was an important consideration in determining an appropriate sentence in the present case.

Consideration

1. In relation to ground 2, his Honour expressly referred to the principle of totality. He also made specific reference to the principles, and the authorities, governing accumulation and concurrence. He was therefore clearly mindful of all of these considerations, and their role in determining an appropriate sentence.
2. Moreover, it has been observed that in a case where an aggregate sentence is imposed, this Court is not in a position to analyse issues of concurrence and accumulation in the same way that it is able to analyse traditional sentencing structures. This is because an explanation does not have to be given by a sentencing judge as to how questions of accumulation and concurrence were resolved: Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77 at [164] citing JM v R [2014] NSWCCA 297 at [40].
3. In all of these circumstances, the asserted error in ground 2 is not made out.
4. As to ground 3, a complaint of manifest excess requires an applicant to establish that the sentence imposed is unreasonable or plainly unjust: Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54. The offending committed by Goktas was obviously serious. It involved the use of firearms, and there were two separate victims. The assistance rendered by the applicant was significant, and extended over a period of some days. Further, as the Crown pointed out, that assistance was rendered by the applicant with full knowledge of the circumstances surrounding Goktas' offending. General deterrence was an obviously important consideration in determining an appropriate sentence. Moreover, his Honour had full regard to the applicant's subjective case, as is evident from his exhaustive review at ROS 11-22.
5. In all of these circumstances I am not persuaded that the sentence was manifestly excessive. Accordingly, ground 3 is not made out.

Ground 4 - The sentencing judge fell into error by taking into account facts which gave rise to more serious offending than that alleged against the applicant in breach of the principle derived from R v De Simoni (1981) 147 CLR 383; [1981] HCA 31

The reasons of the sentencing judge

1. The reasons of the sentencing judge relating to this ground are set out at [12] above.

Submissions of the applicant

1. It was submitted on behalf of the applicant that the sentencing judge fell into error by taking into account facts which gave rise to more serious offending than that which was alleged, thus contravening the principle in R v De Simoni [1981] 147 CLR 383; [1981] HCA 31. Shortly put, it was submitted that the sentencing judge had erred in taking into account the applicant's failure to report the offending to the police, and his response to police when a demand was made pursuant to LEPRA. The error was said to arise from the fact that when done with the intention of hindering or obstructing an investigation, silence, and a failure to divulge information, were matters that were capable of giving rise to an offence contrary to s 315 of the Act, the maximum penalty for which is 7 years imprisonment.

Submissions of the Crown

1. The Crown's principal submission was that the applicant's failure to report Goktas' offending to police, and his response to the demand made by the police under LEPRA, amounted to a failure, and a refusal, to divulge information. It was submitted that in these circumstances, and in light of the provisions of s 315(3), there had been no breach of the De Simoni principle. It was submitted that the provisions of s 315(3) acted as a barrier to a prosecution of the applicant for an offence under that section.

Consideration

1. In De Simoni, Gibbs CJ (with whom Mason J and Murphy J agreed) said (at 389): …A Judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.
2. It will be evident from the issues canvassed in respect of ground 2 that the sentencing judge in the present case proceeded on the basis of facts which satisfied the elements of the offences which were charged. Even if those facts did constitute an offence contrary to s 315, it would not automatically follow that the principle in De Simoni was breached. In Turkmani v R [2014] NSWCCA 186, Beech-Jones J (with whom Hoeben CJ at CL and Hamill J agreed) said the following in reference to De Simoni (at [37]): [T]he sentencing process will not miscarry if the sentencing proceeds on facts that merely satisfy the elements charged, even if one of those elements can amount to a circumstance of aggravation sufficient to found guilt for another more serious offence. However the sentencing process may miscarry if those facts amounted to such a circumstance which is not an element of the offence charged.
3. Further, it will be evident from the passage of his Honour's remarks set out at [12] that having made reference to the submissions made on behalf of the applicant, his Honour observed: …but in addition to that the Offender failed to report the matter to the police at any time and when questioned by police as to the Principal Offender's identity he failed to disclose that matter (emphasis added).
4. Section 315 of the Act is in the following terms: 315 Hindering investigation (1) A person who does anything intending in any way to hinder: (a) the investigation of a serious indictable offence committed by another person, or (b) the discovery of evidence concerning a serious indictable offence committed by another person, or (c) the apprehension of another person who has committed a serious indictable offence, is liable to imprisonment for 7 years. (2) For the purposes of subsection (1), a person is to be considered to have committed a serious indictable offence if a public officer engaged in the detection or investigation of offenders suspects on reasonable grounds that a person has committed the offence. (3) It is not an offence against this section merely to refuse or fail to divulge information or produce evidence.
5. The two failures to which his Honour referred fall squarely within the provisions of s 315(3). The applicant was therefore not liable to be prosecuted for an offence contrary to that section, and there was no breach of the principle in De Simoni.
6. In these circumstances, this ground is not made out.

ORDERS

1. The sentencing judge imposed an aggregate sentence of 2 years and 6 months imprisonment commencing on 12 April 2017 and expiring on 11 October 2019. He imposed a non-parole of 18 months commencing on 12 April 2017 and expiring on 11 October 2018. The applicant was later released, and remains, on bail. It was agreed between the parties that at the time of his release the applicant had served a total of 11 months of the sentence imposed by the sentencing judge. In view of the conclusions which I have reached the applicant must be returned to custody to complete his sentence and in these circumstances I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed. 3. The sentence imposed by the sentencing judge is confirmed. 4. The applicant is to be returned to custody forthwith. 5. The applicant is to be released at the expiration of his non-parole period on 12 September 2019. 6. The applicant's sentence will expire on 12 September 2020.
2. CAMPBELL J: I agree with Bellew J.

Amendments 13 February 2019 - Correction to date on coversheet 14 February 2019 - Correction made to Order [6] 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: 14 February 2019