Tuncbilek v R

Court of Criminal Appeal (NSW)|2020-02-24|Before: Meagher JA, Johnson J, Hamill J

The Applicant's Subjective Circumstances

The Sentencing Remarks

At the conclusion of the hearing on 13 August 2018, the sentencing Judge proceeded to sentence the Applicant, after a short adjournment, by way of an ex tempore judgment. His Honour recited the facts as contained in the Statement of Agreed Facts and then referred to the Applicant's criminal history. His Honour said with respect to the record, and in particular the serious offence of a similar nature in 2015, that the Applicant's "record affords him no leniency" (ROS4).
His Honour then referred in some detail to Dr Furst's report (ROS4-8). A 25% discount was allowed for the utilitarian value of the Applicant's plea of guilty (ROS8).
His Honour observed that there "is no evidence of great planning in this matter" and that it was "unsophisticated" and that it seemed to be "if nothing more than anything else, an opportunistic chance to gain money". The sentencing Judge observed that the victim was a vulnerable person who was placed in fear because of the offence (ROS8).
His Honour noted the submission that the Applicant had a mental disorder or mental condition surrounding the offending and that this was quite obvious from the psychiatric report with Dr Furst also observing that the Applicant's imprisonment will be more onerous on him because of his mental illness (ROS8-9).
His Honour noted the defence submission that the Applicant's prospects of rehabilitation are guarded and a further defence submission "that general deterrence and specific deterrence are important" and that special circumstances ought be found because of the need for the Applicant to be supervised when he is released from custody with treatment for his mental illness also bearing on this question (ROS9).
With respect to the objective seriousness of the offence, his Honour noted the Crown submission that the objective seriousness of the offence was "not significantly below mid level" (ROS9). His Honour then considered the objective seriousness of the offence by reference to factors identified in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [162]-[170]. In referring to the guideline judgment in R v Henry, his Honour was considering specific submissions made by the solicitor who appeared for the Applicant at the sentencing hearing.
In response to the Crown submission that the objective seriousness of the crime was not significantly less than mid-level, it had been submitted for the Applicant that the objective seriousness of the offence was in the lower range for this type of offence. His Honour did not refer to this defence submission or make a finding concerning the objective seriousness of the offence for the purpose of resolving the competing submissions between the parties.
His Honour referred to the circumstances of the offence as being "most unusual insofar as the reason why this offence was done was so that the offender could get, it would appear, back into custody" (ROS10). His Honour noted that this aspect did "not lessen in any way the fear that the victim held" and observed a little later that the Applicant "committed a very serious crime" (ROS10).
The sentencing Judge then said (ROS10-11): "There needs to be a message sent to the offender, especially on the heel so quickly of his last offence, that if he wishes to get assistance from somebody he does not do it by endangering other peoples' lives. He does not do it by committing further offences. He must be held accountable for his actions and the general community needs to know that for whatever reason you attempt or you commit an offence of assault with intent to rob with a weapon you will face condign punishment which will in the vast majority of offences result in terms of imprisonment."
His Honour then noted that "an addiction to drugs is not a mitigating factor" and that there were "rehabilitation considerations" to be taken into account. His Honour then proceeded to impose the sentence referred to earlier in this judgment.

Ground 1 - Error in Assessment of Objective Seriousness of the Offence Submissions of the Parties

Mr Evers, counsel for the Applicant, submitted that the sentencing Judge had erred in his assessment of the objective seriousness of the offence in not taking into proper account the fact that a butter knife was used, the Applicant's motivation (to get arrested) and the mental illness which was causally related to the offending. It was submitted that although these factors were referred to in passing, they were not factored into an assessment of objective seriousness of the offence.
The Crown emphasised that his Honour had delivered ex tempore sentencing remarks which should be read fairly and as a whole. The Crown submitted that the sentencing Judge had regard to the guideline judgment in R v Henry as that was the focus of submissions advanced on behalf of the Applicant at first instance. It was submitted that the sentencing Judge had regard to the circumstances of the offence and that error had not been demonstrated as asserted in this ground of appeal. Decision
This Court should be cautious before finding error in the evaluative process which constitutes characterisation of the objective seriousness of an offence: Mulato v R [2016] NSWCCA 282 at [37], [46]. It was reasonable for the sentencing Judge to approach an assessment of objective seriousness by reference to the guideline judgment in R v Henry, the approach upon which the Applicant's submissions were based at first instance.
It is also necessary to keep in mind that the sentencing remarks were delivered ex tempore after the sentencing hearing. In R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130, this Court said at [34]-[35]: "34 … the remarks on sentence were delivered ex tempore immediately following the sentencing hearing on 3 February 2012. This course had the undoubted advantage that those present in Court could hear immediately the sentence which was passed and his Honour's reasons for passing that sentence. A consequence of this approach, which is understandable in a busy court, is that remarks on sentence may not be 'as robustly structured as they might otherwise have been' (Simpson J in Simkhada v R [2010] NSWCCA 284 at [24]) and may 'lack the order and precision of language that can be incorporated into a judgment after the luxury of time for consideration, refinement of expression, and polishing' (Simpson J in Rotner v R [2011] NSWCCA 207 at [57]). 35 When considering whether error has been demonstrated in the ways alleged by the Crown, it will be necessary to fairly read his Honour's remarks on sentence, bearing in mind the features of an ex tempore decision."
At the same time, it is necessary to bear in mind that a significant contested issue on sentence related to the characterisation of the objective seriousness of the offence. In addition, a submission was made on behalf of the Applicant with respect to the related issue of the Applicant's moral culpability which, it was submitted, was reduced because of the contribution of the Applicant's mental disorder to the offence.
The sentencing Judge did not express a conclusion with respect to the competing submissions of the Crown and the defence concerning the objective seriousness of the offence. Nor did his Honour refer to the concept of moral culpability at all in the sentencing remarks.
In the circumstances of this case, these issues were very important aspects calling for determination. This was a most unusual offence where statements made by the Applicant to the victim and the police on the day of the offending and later to Dr Furst (with those statements being accepted by the sentencing Judge), indicated that the Applicant committed this offence for the purpose of being arrested. He did not persevere in an attempt to obtain money from the victim. After an undoubtedly frightening initial threat, albeit with a butter knife, he effectively retreated outside the service station and waited there until police arrived.
The type of self-destructive conduct where a person commits an offence for the purpose of being arrested and imprisoned is usually observed in the context of an institutionalised individual who has trouble coping with life outside prison: cf Jinnette v R [2012] NSWCCA 217 at [110]. That is not the present case. The Applicant's criminal history contains offences dealt with by non-custodial orders with one exception in 2015 being the earlier offence of a similar type.
There was a substantial foundation for a finding that the present offence was motivated principally by a desire to be arrested and charged rather than to obtain money from the victim, although that element was admitted by the Applicant's plea of guilty. This aspect reflected significantly upon an assessment of the objective seriousness of the offence and the related issue of the Applicant's moral culpability.
In Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247, this Court said at [112]-[113]: "112 In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J). 113 The concept of 'moral culpability' was used by the sentencing Judge in this case and in submissions to this Court. The term 'moral culpability' has been used (in a somewhat flexible way) as part of the general law of sentencing. The term may be found in several decisions of the High Court. In Veen v The Queen (No. 2) (1987-1988) 164 CLR 465; [1988] HCA 14, it was observed (at 476-477) that a mental abnormality may diminish moral culpability and an antecedent criminal history may illuminate moral culpability."
I have made full allowance for the fact that his Honour delivered ex tempore sentencing remarks at the conclusion of the hearing. It is appropriate that this Court read the sentencing remarks fully and fairly and not engage in an unduly critical process of textual analysis.
However, having undertaken that task, it remains the fact that no conclusion was expressed by his Honour with respect to the objective seriousness of the offence nor was there any mention of the Applicant's moral culpability in circumstances where these were central aspects of the sentencing function in this case. Error is disclosed in the approach adopted by the sentencing Judge.
I am satisfied that the Applicant has made good the first ground of appeal.

Ground 2 - Error in Failing to Consider the Role of the Applicant's Mental Health in the Sentencing Exercise Submissions of the Parties

In support of what is an overlapping ground of appeal, counsel for the Applicant submitted that the sentencing Judge had failed to consider the role of the Applicant's mental health in the sentencing exercise in this case. It was submitted that this difficulty was demonstrated by his Honour's approach to assessment of objective seriousness, the Applicant's moral culpability and issues of general deterrence and specific deterrence amongst other topics.
To the extent that submissions made on appeal varied to an extent from those advanced at first instance, it was submitted that the evidence in support of these aspects was not in contest so this Court could have regard to these submissions on appeal: Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [82].
The Crown submitted that the sentencing Judge had regard to these aspects in sentencing remarks and that his Honour was alive to the existence of a mental condition which was taken into account on sentence. The Crown submitted that the existence of a mental condition affecting a person does not lead to automatic favourable consequences for that person on sentence: Aslan v R [2014] NSWCCA 114 at [33]-[34]; Hazell v R [2015] NSWCCA 26 at [17]. Decision
It is necessary to consider the matters complained of under the second ground of appeal in conjunction with the issues raised in Ground 1. There are overlapping issues in the two grounds which affect the resolution of the second ground of appeal as well.
Apart from the impact of the matters raised concerning the Applicant's mental condition and its role in an assessment of objective seriousness and moral culpability, the Applicant's mental condition was relevant as well to issues of specific deterrence, general deterrence and protection of the community in the well-known respects identified in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] and Aslan v R at [33].
This is not to say that consideration of these aspects leads to automatic consequences favourable to an offender on sentence. Protection of the community may loom large as a factor to be considered as well as the impact of an offender's mental condition on issues of specific deterrence and general deterrence. The sentencing Judge made reference to a number of these features, but did not elaborate in any meaningful way as to how these matters impacted on sentence.
The sentencing response to this particular offence required due allowance to be made for the Applicant's mental condition which operated at a number of levels on sentence. There was a clear connection between the offence and the Applicant's mental condition. In these circumstances, less weight was to be given to issues of specific deterrence and general deterrence. The Applicant's mental condition (including his desire to be arrested which related to his mental condition) did not make him an appropriate vehicle for sending a message to other potential offenders by way of general deterrence. Although elaborate reasoning was not required, it was necessary that there be some brief explanation at least as to how the Applicant's mental condition was treated in the sentencing process. That did not occur in this case.
I am satisfied that the Applicant has made good this ground of appeal as well.

Ground 3 - Claim that the Sentence was Manifestly Excessive

As the first and second grounds of appeal have been established, I do not consider that it is necessary to give separate consideration to the claim of manifest excess. The submissions made with respect to that ground of appeal may be taken into account in determining sentence after the Court has undertaken the approach required by law.

Resentencing the Applicant

Error has been established under the first and second grounds of appeal. Having identified specific error as described in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40, it is necessary for this Court to exercise its sentencing discretion for the purpose of determining whether a lesser sentence should be imposed in accordance with s.6(3) Criminal Appeal Act 1912 (NSW): Kentwell v The Queen at [43]. Admissibility of the DVD Depicting the Offence
It is appropriate to return at this point to the tender by counsel for the Applicant of the DVD containing closed-circuit television footage of the commission of the offence on 24 December 2017. Clearly, the parties were well aware of the existence of the closed-circuit television footage at the time of the sentencing hearing. There was express reference to it in the Statement of Agreed Facts and a still photograph depicting the Applicant holding the knife towards the victim was tendered at that hearing. A narrative account of the offence was reduced to writing in the Statement of Agreed Facts.
This Court has flexibility to receive new or fresh evidence on the hearing of a sentencing appeal where it is necessary to do so in order to avoid a miscarriage of justice: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2], [8], [10]. Clearly, the DVD constitutes new and not fresh evidence as it was available at the time of the sentencing hearing: Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 at [107].
It would not have been appropriate to admit the DVD into evidence on appeal before the Court had found error and had moved to the exercise of sentencing discretion under s.6(3) Criminal Appeal Act 1912 (NSW). Application of the principles contained in Khoury v R at [104]-[121] and Betts v The Queen at [10] would lead to this outcome. I have kept in mind that the evidence which was sought to be tendered in this Court was a video recording of the commission of the offence itself. The position is different from the more common experience of this Court where the further evidence sought to be tendered involves medical or psychiatric reports or evidence of assistance to authorities: Khoury v R at [111]-[112].
The real question is whether the material before the sentencing Judge was erroneous or misleading in a material respect so that there was a risk of a miscarriage of justice if this Court did not receive the DVD on appeal. Could it be said that the sentencing Court had proceeded on an erroneous view of the facts before it: Khoury v R at [113]?
There was one area only where it was submitted that there was a material difference between the Statement of Agreed Facts and the contents of the DVD. To the extent that the Statement of Agreed Facts may have left open a suggestion that the Applicant kicked the door of the service station on several occasions in an apparently agitated state, the Crown and counsel for the Applicant agreed that the images contained in the DVD revealed one kick only. As that feature was agreed by counsel before this Court, it was not necessary to avoid any miscarriage of justice that the DVD be admitted before the Court had otherwise found error and moved to exercise the s.6(3) function.
As the point has now been reached where s.6(3) is under consideration, it remains necessary to consider whether the DVD should be viewed by this Court for the purpose of resentencing the Applicant. The general rule is that this Court undertakes the resentencing exercise under s.6(3) on the material before the sentencing Court, with the addition of any relevant evidence of the Applicant's progress towards rehabilitation in the period since the sentencing hearing: Betts v The Queen at [2]. This general rule does not deny that the Court has the flexibility to receive new evidence where it is necessary to do so to avoid a miscarriage of justice: Betts v The Queen at [2], [10].
I am not persuaded that it is necessary for the Court to view the DVD for the purpose of resentencing the Applicant given the Statement of Agreed Facts, and the additional agreement in this Court with respect to the Applicant kicking the glass door on one occasion only. Accordingly, I have not viewed the DVD for the purpose of resentencing the Applicant. Exercising Sentencing Discretion for the Purpose of s.6(3) Criminal Appeal Act 1912
It is the fact that the Applicant brandished the butter knife and held it facing the victim for a short period before departing the service station shop and waiting outside. He did kick the door once and yell out in a threatening fashion towards the victim who was, by that time, locked inside the shop. However, this conduct may be characterised appropriately as being part of the Applicant's behaviour undertaken in an effort to be arrested, charged and imprisoned. The sentencing Judge observed rightly that this was a frightening event for the victim. However, in the unusual circumstances of this offence, the Applicant did not follow through in any sustained fashion with the offence.
Assessment of the objective seriousness of this offence takes into account not only the factors referred to in R v Henry, but particular factors including the nature of the weapon (a butter knife), the Applicant's dominant motive (a desire to be arrested) and his mental condition which was causally related to the offending: Tepania v R at [112]. These aspects were relevant as well to the overlapping issue of the Applicant's moral culpability which was reduced by reference to these factors.
It is relevant to the objective seriousness of the offence that the victim was terrified by the Applicant's threat conveyed by words and conduct. The fact that the Applicant was brandishing a butter knife only was not likely to reduce the level of fear in the mind of the victim. As far as the victim was concerned, the Applicant was threatening him with a weapon and demanding money in a setting where the victim was vulnerable and where robberies of this type are all too common events.
The fact that the Applicant walked outside the shop and was able to be locked out bears upon the objective seriousness of the offence, although the Applicant did kick the door on one occasion whilst making threatening comments. The fact that the Applicant had mentioned to the victim that he (the victim) "can call the cops" may have only served to exacerbate the level of confusion and fear in the victim's mind given the disordered and unpredictable nature of the event itself.
Having regard to all aspects bearing upon an assessment of objective seriousness, including the important features with respect to the Applicant's motive and mental condition, I am satisfied that the offence may be characterised appropriately as being towards the lower end of the range for this type of offence. These aspects serve as well to reduce the Applicant's moral culpability.
Other factors relevant to sentence were influenced as well by the Applicant's mental condition including a lesser role for general deterrence. At the same time, the Applicant's offence was related to his use of illicit drugs which served to exacerbate his mental condition. To the extent that there was an element of self-induced intoxication of the Applicant at the time of the offence, this factor is not to be taken into account as a mitigating factor on sentence: s.21A(5AA) Crimes (Sentencing Procedure) Act 1999 (NSW). That said, this aspect was inextricably linked to the Applicant's mental condition. There was no evidence that the Applicant realised that one of the effects of his "Ice" use might have been that he would have acted violently towards another person. If there had been such evidence, this aspect was capable of operating as a matter of aggravation: R v Gagalowicz [2005] NSWCCA 452 at [36]; Director of Public Prosecutions (Vic) v Arvanitidis (2008) 202 A Crim R 300; [2008] VSCA 189 at [24]-[35].
The fact that the Applicant had developed an addiction to "Ice" is a relevant factor on sentence but is not, of itself, a mitigating circumstance: R v Henry at [171]-[208].
The Applicant's prior criminal history does not assist him on sentence, in particular the 2015 offence of a similar type committed at a service station in Fairfield.
No additional subjective material was placed before this Court concerning the Applicant's progress in custody. The Court is limited to the material before the District Court and, in particular, Dr Furst's report of 7 August 2018. The contents of that report raised clear concerns with respect to the Applicant's prospects for rehabilitation and risk of reoffending. It is clear that a significant level of community support is required when the Applicant is in a position to return to the community by way of conditional liberty on parole.
Having regard to all factors relevant to the sentencing discretion, I am satisfied that a lesser sentence is warranted for the purpose of s.6(3) Criminal Appeal Act 1912 (NSW). After allowing for a 25% discount for the utilitarian value of the Applicant's plea of guilty, a sentence of imprisonment for three years is appropriate in this case. That sentence will date from 24 December 2017. I am not persuaded that a finding of special circumstances should be made in this case. Applying the statutory ratio in s.44 Crimes (Sentencing Procedure) Act 1999 (NSW), the non-parole period would comprise a period of two years and three months with a balance of term of nine months. I am satisfied that these are the appropriate orders to make in all the circumstances of this case.
The Applicant will be entitled to release at the conclusion of the non-parole period by way of a statutory parole order under s.158 Crimes (Administration of Sentences) Act 1999 (NSW).

Conclusion

I return to the Applicant's application for an extension of time. As there is merit in the Applicant's grounds of appeal, the interests of justice warrant an extension of time in this case.
I propose the following orders: 1. time for the Applicant to seek leave to appeal against sentence extended to 29 November 2019; 2. grant the Applicant leave to appeal against sentence; 3. appeal against sentence imposed on 13 August 2018 is allowed and the sentence is quashed; 4. for the offence of assault with intent to rob whilst armed with an offensive weapon, the Applicant is sentenced to imprisonment for three years comprising a non-parole period of two years and three months commencing on 24 December 2017 and expiring on 23 March 2020, with a balance of term of nine months commencing on 24 March 2020 and expiring on 23 December 2020; 5. the Applicant will be entitled to release on parole on 24 March 2020.
HAMILL J: I agree with the orders proposed by Johnson J, with his Honour's reasons for upholding grounds 1 and 2 and in determining the sentence that should now be imposed. I also agree with Johnsons J's conclusion as to the admissibility of the new evidence on appeal but would add the following observations.
But for two considerations, I would have been inclined to allow the tender of the closed circuit television footage (CCTV) of the crime being committed both on the application for leave to appeal and on the "usual basis", that is on the question of re-sentence. The relevant principles were stated in Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25. The statement of facts tendered in the District Court was, at best, ambiguous as to the actions of the applicant once he had left the service station shop. My reading or understanding of the statement of facts was that the applicant kicked the door on a number of occasions. The facts included: "He then began to kick at the door whilst screaming … As the offender was swearing and kicking the door …"
The sentencing Judge repeated these facts in the remarks on sentence. It was never made clear in the proceedings at first instance that the applicant kicked the door once and once only.
In Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 the High Court said at [10]: "Notwithstanding its wide terms, it is well settled that the Court of Criminal Appeal's power to intervene is not enlivened unless error in any of the ways explained in House v The King is established. The identification of error will ordinarily be by reference to the sentencing judge's reasons on the material that was before the court. However, the Court of Criminal Appeal has recognised that there are bases upon which error at first instance may be disclosed by new or fresh evidence. Generally, the Court of Criminal Appeal insists upon proper grounds being established as a foundation for the exercise of its discretion to receive fresh evidence. Evidence qualifies as fresh evidence if it could not have been obtained at the time of the sentence hearing by the exercise of reasonable diligence. None of this is to deny that the Court of Criminal Appeal has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice." (Emphasis added.)
In view of the ambiguity concerning the facts, and the probative force of a video depicting the applicant's precise actions, I would have allowed the tender of the CCTV. However, as I have said, two considerations lead me to the contrary conclusion. First, the respondent conceded in this Court that the applicant only kicked the door once. The ambiguity surrounding the facts no longer exists. Second, the sentence proposed by Johnson J will result in the applicant's imminent release on a statutory parole order. For those reasons, it is not necessary to receive the CCTV to avoid a miscarriage of justice. Nor is it necessary to receive the evidence on the issue of re-sentence.

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: 04 March 2020

Grounds of Appeal

By his notice of application for leave to appeal filed on 29 November 2019, the Applicant relies upon the following grounds: 1. Ground 1 - his Honour erred in his assessment of the objective seriousness of the offence. 2. Ground 2 - his Honour erred in failing to consider the role of the Applicant's mental health in the sentencing exercise. 3. Ground 3 - the sentence imposed is manifestly excessive.
The Applicant requires an extension of time to bring the application for leave to appeal against sentence given the passage of some 15 months between his sentencing on 13 August 2018 and the filing of the application in this Court on 29 November 2019.
Affidavits of the Applicant affirmed 6 January 2020 and of his solicitor, Janet Witner, affirmed 13 February 2020, provided some explanation for the delay in bringing the application.
The discretionary power to extend the time limit in s.10(1)(b) Criminal Appeal Act 1912 (NSW) is a legislative recognition that the interests of justice in a particular case may favour permitting an application for leave to appeal against sentence to be heard notwithstanding that it was not brought within time. Relevant to the determination of the interests of justice on such an application are the prospects of success of the grounds of appeal should the extension be granted: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [32]-[33], [44].
I will return to the application for extension of time after considering the merits of the proposed grounds of appeal.

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