DPP v Koc
[2002] VSCA 122
•1 August 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 77 of 2002
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v. |
| AHMET SAHIN KOC |
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JUDGES: | WINNEKE, P., PHILLIPS, J.A. and O'BRYAN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 1 August 2002 | |
DATE OF JUDGMENT: | 1 August 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 122 | |
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Criminal law – Sentencing – Director’s appeal – Aggravated burglary, intentionally causing serious injury and false imprisonment – Further offending in breach of bail conditions - Young offender, no prior convictions – Offending the result of the break-up of a relationship – Failure to record convictions and adjournment to be of good behaviour manifestly inadequate – Convictions recorded and imprisonment ordered, though totally suspended.
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| APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J.D. McArdle Q.C. | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr G. Thomas | Victoria Legal Aid |
WINNEKE, P.:
Mr Justice Phillips will give the first judgment in this appeal.
PHILLIPS, J.A.:
This is an appeal by the Director of Public Prosecutions unders.567A of the Crimes Act 1958. The appeal is from sentence passed in the County Court at Melbourne on 8 February 2002 after the respondent, who was 19 years old at the time of the offending and without any prior convictions, pleaded guilty to five counts. The first three, one count of aggravated burglary, one of intentionally causing serious injury and one of false imprisonment, arose out of events on 19 December 2000 when the respondent entered the premises of his erstwhile girlfriend, armed with a knife. The other two counts, of stalking and of being in possession of a drug of dependence, cannabis, arose out of events subsequent to his arrest and release on bail.
On 3 April 2001, the respondent pleaded guilty and the sentencing judge heard a plea in mitigation by counsel, during which the respondent's brother gave evidence viva voce. His Honour then adjourned the proceeding to a date to be fixed and the respondent was admitted to bail. For one reason or another the proceeding did not resume until 8 February 2002, when the respondent himself gave evidence. No doubt because of the seriousness of the offending, it had initially been the position of prosecuting counsel that an immediate custodial sentence was called for, but when the hearing resumed in February 2002 that submission was altered: the question whether there should be immediate imprisonment was a matter for the court, it was now said, and a totally suspended sentence was not out of the range. However the judge went even further in favour of the respondent, and despite the finding of guilt that necessarily followed from the plea, his Honour exercised his sentencing discretion by not recording a conviction and adjourning the proceeding for a period of 42 months, releasing the respondent on his own undertaking to be of good behaviour in the meantime and upon condition that "he continue with any
treatment prescribed by Ms Selvi", she being the psychologist whose report was put in evidence on 8 February 2002.
The Director now appeals, submitting that the sentence imposed was manifestly inadequate. According to the notice of appeal, although the Director appeals in relation to the sentence imposed below, error is alleged only in relation to the failure to record convictions in respect of each of Counts 1, 2, 3 and 4 and in his Honour's failing to impose a term of imprisonment in respect of those counts. Thus error is not specifically alleged in relation to Count 5. Nonetheless it seems now accepted that if we were to accede to the appeal on the basis of error in relation to the sentence imposed in respect of Counts 1, 2, 3 and 4 it would be inappropriate to leave the sentence stand in relation to Count 5. Thus, if the sentencing discretion is to be re-exercised, both sides appear to accept that it is appropriate for this Court to re-sentence in relation to all five counts.
So far as concerns the exercise of the sentencing discretion below in relation to Counts 1, 2, 3 and 4, while not resiling from the submission made below that the judge had a discretion totally to suspend any sentence of imprisonment imposed after conviction, the Director submits that the sentence that was imposed lay altogether outside the proper range, in particular in that no conviction was recorded and no sentence of imprisonment imposed, and I must say I agree. Like a submission of manifest excess, a submission that a sentence is manifestly inadequate does not admit of much argument - and in this case it almost suffices to recite the circumstances of the offending.
On Thursday 14 December 2000 a young lady, herself only 20 years old and to whom I shall refer as the complainant, terminated her 18 month relationship with the respondent. She was a student and lived in her parents' home in a Melbourne suburb.
According to the complainant, on 19 December she felt unwell and stayed at home. In the course of the morning she received five telephone calls from the respondent telling her that he was coming to her home. She had told him not to come. He had asked when he would see her again and she had told him that she did not want to see him again.
It was towards midday, and the complainant was still in bed, when she heard noises outside including an attempt to open the back door. She opened her bedroom curtains and saw the respondent. She asked him what he was doing there and he told her that he had come "to sort stuff out". She told him, "There's nothing to sort out", and he then asked her to come outside for a cigarette. When she declined he asked to be let inside to use the bathroom. She refused and he said, "I'll be right back". She closed the curtain but then heard the sound of breaking glass. The complainant then watched the respondent crawl through the broken bedroom window. He pulled the bed clothes and pillow from the bed and began punching her in the face using both fists. She said, "What are you doing?" he replied, "I've come here to kill you". At about that point he pulled a knife from his sock. The complainant had seen him with this knife before, she claimed. She said that she went to grab a nearby telephone to call the police but he used the knife to cut the phone cord. She reached for her mobile telephone but he snatched that away. After berating her for her social habits, and with the knife still in one hand, the respondent started hitting the complainant with both hands, throwing punches to her head. She fell to the ground and he started kicking her to the arms and head. She curled up, trying to protect herself and pleaded with him to stop. She told him she loved him and wanted to get back with him although this was not true.
Eventually the respondent broke off his assault. They left the bedroom and the complainant washed her face in the bathroom. She then rejoined the respondent in the study. He looked at her computer and accused her of using the Internet. She believed his objection was that she was using the Internet to make contact with other men via chat programs. He threw the computer monitor on to the floor and she retreated to the bathroom. He followed her saying, "I'm still going to kill you. This will be your last day no matter what you say". He punched her several times to the face and pushed her against the wall choking her. He still grasped the knife in his left hand. He eventually let her go.
At this stage the complainant said she wanted a drink and offered him one. They went to the kitchen and the complainant poured herself a glass of orange juice. He hit her again causing her to spill the juice. They walked towards the loungeroom, the respondent reiterating his threat, stating, "This will be the last day you will see the sky. I'm going to stick this knife in you and twist it. Then when I leave I'm going to burn down the house with you in it". He knocked the drink out of her hands and the glass shattered. She fell to the ground and he kicked her four or five times. She struggled to her feet and he then used the knife to cut off a length of her hair. He was attempting to cut off a second length when the complainant jumped over the banister of a stairwell leading down from the loungeroom to a garage. He grabbed at her clothing but she made her way into the garage and pushed the button to open the automatic garage doors. The doors were still opening when the respondent caught up with her. He started again punching her to the head. The garage doors continued to open and the two of them were observed by a 13 year old boy, the son of a neighbour. The complainant called out for help but the respondent, covering the complainant's mouth, called out to the boy that everything was all right, whereupon the boy ran off to his own home.
The respondent then dragged the complainant over to the garage door button and they struggled over the mechanism. He bit her hand and she fell to the ground. According to the complainant, the respondent then struck her several times to the head with a saucepan, breaking its handle. By then the garage doors had closed and the complainant pressed the button again. The respondent told her to go back into the loungeroom; he said that he was going to tell the neighbours that it was all right and he left the complainant at the stairs. She then ran around him and up the driveway. She was aware that the mother of the boy who had earlier seen them was now nearby and yelling something at the respondent. She saw the mother confront the respondent and then saw the respondent walk away.
The complainant later stated to the police that during the whole of the episode she thought that the respondent was going to kill her. He was very angry and all she wanted to do was get away from him.
At 6:20 p.m. on the same day the complainant consulted a local doctor. He described 54 separate injuries across the whole of the complainant's body, generally in the nature of minor scratches, bruises and abrasions. He administered a tetanus toxoid and prescribed antibiotics. Later x-rays revealed that the complainant had suffered no fractures.
It remains only to add that the mother of the boy who had witnessed some of the altercation between the respondent and the complainant told police that she was alerted to the assault by her son. She went outside and confronted the respondent. She found the complainant whimpering, crouched in the grass. She had blood on her face and on her clothing. The complainant said to her, "He's trying to kill me". The witness said that she had yelled at the respondent, he had hesitated, moving several times as if to approach, but finally walked away.
It was not long after the incident just recounted that the respondent was arrested at the local police station. He was interviewed and stated that the complainant had invited him to her house but then, when he was already on his way, had told him not to come. This, he said, hurt him. He went there because he loved her and hoped to patch up their differences. It appears that, at least so far as he saw it, they had been planning to marry. He claimed in his record of interview that when he went to her house he was emotionally off-balance because he was fasting for Ramadan. When he arrived at her house the two of them spoke through the window and she, he said, swore at him using a Turkish phrase he had taught her. He asked her to be allowed in to wash in the bathroom and she told him to use the garden tap. At the tap he thought about her mistreatment of him and "became insane", to use his words. He took a rock from the garden, he told the police, broke the bedroom window and then crawled through the window.
There is no need to go into the detail of the respondent’s record of interview. Suffice it to say that he did not deny wielding the knife: rather, he said that he "used the knife to keep control of the situation". He admitted that he had hit the complainant, but asserted to the police that he could have done worse. He stated that he had struck her five to ten times and not hard "like you would hit a male", and not with a clenched fist; he had struck her with the back of his hand. He admitted that he had bitten her. He said, however, he could have stabbed the complainant with the knife, "slid it in", but he didn't do so because he then would have faced "severe punishment". He conceded he had taken and kept the complainant's mobile telephone. He admitted telling her while he was hitting her that he was going to kill her; he explained he did this so she would shut up and listen to him. He had no intention, he claimed, of killing her. He conceded that she would have "thought [herself] in danger of her life", and claimed that, while he did say, "If you want to live again, if you want to see another day to live ... you better pay attention to my words", he did not threaten to stab her or burn down the house. He admitted he kicked the complainant to the backside once or twice, lightly as he described it. He also admitted cutting her hair. He said he did this so as to have something to remember her by. He denied that he struck her in the head with the saucepan.
Throughout the interview the respondent referred to his former aspirations for a life together with the complainant, and referred to the many ways in which he claimed she had disappointed him. He reflected that it was good that his emotional "build up" had discharged in the way that it had that day and said that "nothing major had happened", in that no permanent injury had been inflicted, and he claimed in the course of his interview that the offending was the complainant's fault. In general it may be said he was unrepentant in the course of his interview with police about assaulting the complainant.
At the conclusion of the interview the respondent was charged with the first three counts, aggravated burglary, intentionally causing serious injury and false imprisonment. Subsequently he was bailed upon conditions inter alia that he not contact the complainant.
The complainant, however, made a second statement to police on 30 December 2000. She said that on 23 December she began receiving telephone calls from the respondent on her mobile, at least some of which were identified as emanating from the respondent and some were abusive. I do not go into detail about the eight calls the complainant received on the first day, that is on 23 December. On the next day she received two nuisance calls and four more calls from the respondent on Christmas day. In two of the last the respondent spoke to her in a rambling fashion, once about fathers hitting their children because they care, and once about how he missed her. On 26 December the complainant received eight calls from the respondent. These included a number of SMS messages where the respondent quizzed the complainant about her involvement with other men. On 27 December there were seven calls to the complainant from the respondent, in one of which he expressed his unhappiness that they were no longer together. In another he was somewhat threatening, and in another he expressed his disappointment that she refused to talk to him or let him in for a drink. On 28 December the complainant kept her telephone turned off for most of the day, receiving one text message which was simply the word "liar". On 29 December the complainant received three nuisance calls and then an SMS message in which the respondent called her a liar again. There were two further nuisance calls that evening and the next morning the complainant surrendered her telephone with the stored messages to the police.
In consequence of this second statement on 30 December the respondent was arrested on 31 December in his home. He was then searched and a small quantity of cannabis found in paper folds in his wallet. This gave rise to Count 5. The respondent was then interviewed again. He admitted that as a result of his bail conditions he was prohibited from contacting the complainant, and admitted making calls to the complainant none the less and in general to sending the messages received by the complainant.
These, then, were the circumstances of the offending and there is no doubt that the first four counts to which the respondent pleaded guilty were serious offences. The count of aggravated burglary itself carries a maximum term of 25 years' imprisonment, while the offence of intentionally causing serious injury carries a maximum of 20 years. It was serious indeed for the respondent to break his way into the complainant's home, wielding a knife as he did, and then to cause her injury. Not only did this involve an armed entry into the victim's home when she was alone, there was some element of premeditation, and it cannot be said to be entirely impulsive behaviour. The complainant offered no provocation or encouragement to the respondent: quite the contrary. The burglary was itself followed by a violent and sustained attack on the complainant, and there was some damage to property. In many ways, the incident can be characterised as vicious and cowardly. I must say that it seems to me very fortunate indeed that, given the high emotions that were then in play, the complainant was not more gravely injured than she was. Nevertheless the infliction of 54 separate injuries, across the whole of her body, however relatively minor each of them might have been upon subsequent examination, says something of the terror which the whole incident must have caused her.
Indeed the sentencing judge said, early in his sentencing remarks:
"The Crown see this matter as particularly serious, I do not in any way resile from that view. I do not think anyone who read these materials, albeit that there is no victim impact statement, simply a recounting of the circumstances, would [fail to] understand the terror that [the complainant] went through. Perhaps as another indication of [the complainant's] pluck and the type of person she is, the court had before it Exhibit 3, which is a letter from her confirming that thereafter the consequences she suffered were not physical but obviously mental, but taking the view that both parties have to get on with their lives and her view was that Mr Koc had learnt from this and should not be imprisoned."
Exhibit 3 (which was a statutory declaration not a letter) was quite clearly of influence with the judge, as also was the psychologist's report, which his Honour had by the time of re-sentencing on 8 February. By then, too, he had heard from the respondent himself and of this the sentencing judge said:
"Further, I have heard from Mr Koc today. He is still, and was, a young man at the time. He is a young man who committed these offences while in passion and no doubt while still immature - this was his first relationship, indeed it was the first time that he had had to handle the breaking up of a relationship. It was also committed at a time when he had not faced up to and dealt with many of the issues concerning Mr Koc as set out in Ms Selvi's report".
This last was a reference to the respondent's difficulties in reconciling the demands of a strict Turkish father with the different cultural environment he was experiencing in Australia. The judge referred, too, to the fact that the respondent had already spent some 65 days in custody as a result of his having been refused bail on a second occasion and that during that time in custody he was assaulted - as a result, perhaps, of his own stubbornness - but importantly he underwent "an anger management course within the gaol and an assessment in regard to his drug-taking". Moreover, the judge was plainly alive to the important circumstance that this man was still only 20 years old, was about to resume his university course, and rehabilitation was a very important consideration.
As his Honour said in his sentencing remarks, he exercised the discretion conferred upon him by s.70 of the Sentencing Act 1991 because of the "extenuating circumstances and the particular fact that the young man has been in gaol for some time and was assaulted therein" and in order "to take account of and promote the need for rehabilitation". Further, when emphasising in the course of his sentencing remarks to the respondent "how lucky he is" the judge said:
"I do not record a conviction because of the difficulties he has encountered in adapting to this society and the difficulties he has encountered in living in a traditional environment and adapting to a new society. It seems to me that to have convictions of this type may well impede his rehabilitation insofar as they may impact upon his capacity of employment once he completes his education".
A little later the judge added:
"I should have also mentioned when I was talking about exceptional circumstances the two additional matters that have led me to making this determination are, firstly, for the last 10 months Mr Koc has, subject to a very real threat by myself at the last hearing of imminent gaol, been subject to that threat while he has undergone treatment and has awaited further listing; and secondly, a factor which is perhaps indicative of the pluck that [the complainant] showed, the attitude as expressed by her in her affidavit (Exhibit 3) and in particular her attitude as to the issue of imprisonment for Mr Koc".
I have taken the time to set all this out because, with great respect, I do not agree that the matters relied upon by his Honour, which may well have been germane to the suspending of any custodial sentence, led properly to the conclusion that no conviction should be recorded. As is obvious enough from a recitation of the circumstances of the offending, these were serious examples of the crimes which were charged and, to my mind, they called for a sentence of imprisonment.
Some incidental criticism of the sentences was made to us by counsel for the appellant. For example, attention was drawn to the fact that although Count 4, that of stalking, arose out of events occurring while the respondent was on bail and in breach of the conditions of that bail, no separate reference was made to that fact, or indeed to Count 4, in his Honour's sentencing remarks. Further, the option of release on adjournment without conviction was not the subject matter of submission by either counsel on the plea, those submissions being directed, rather, towards a suspended sentence or perhaps an intensive corrections order. (Release on adjournment was a matter raised by the judge rather suddenly towards the conclusion of the second hearing, although not surprisingly it was a suggestion promptly embraced by counsel for the respondent.) Moreover, said the appellant on this appeal, while some of the considerations in s.70 of the Sentencing Act may have been present, others clearly were not: for example, those in paragraphs (b) and (d) of sub-s.(1). And finally although it was made a condition of the adjournment that the respondent "continue with any treatment prescribed by Ms Selvi", the psychologist, that was a condition apparently fixed without inquiry of her, either as to availability or whether the condition was appropriate. As it happened, her last encounter with the respondent had been on 9 August 2001.
There is, if I may say so, some force in these criticisms, but in the end there is no need to pursue them. It is enough to say that the facts speak for themselves. In much the same way as was said by the Court of Appeal in Re MJR[1], the seriousness of the offences was such as to require that a conviction be recorded and a sentence of imprisonment imposed. Whatever force could be said to lie in the circumstances going in mitigation, including as they did the offender 's youth, lack of previous convictions, the plea of guilty, the time perhaps that elapsed between the first hearing and the second, and the efforts at rehabilitation which had been made with the psychologist in the interim - as I say, whatever force lay in all of the circumstances going in mitigation, they were, in my opinion, insufficient in this instance to gainsay the conclusion that a conviction should be recorded and a sentence of imprisonment imposed. As was said by O'Bryan, A.J.A. in DPP v North[2]:
"But, in any event, non-conviction should rarely be available for an offence as serious as aggravated burglary".
That was said in a case where the charge of aggravated burglary was coupled with a charge of intentionally causing injury; in this instance it was coupled with the offence of intentionally causing serious injury.
[1](2000) 1 V.R. 119.
[2](2002) VSCA 57 at (17).
In the result, for the reasons I have given, I think that the exercise of the sentencing discretion below did miscarry, as submitted by the Director, and that accordingly the appeal should be allowed, the sentences imposed below set aside and the sentencing discretion re-exercised.
In addition to recording convictions on all five counts, I would sentence the respondent as follows, bearing in mind that this is a Director's appeal and the other matters that were put in mitigation. On Count 1, aggravated burglary, I would sentence the respondent to 12 months' imprisonment; on Count 2, intentionally causing serious injury, 12 months' imprisonment; and on Count 3, false imprisonment, six months' imprisonment. On Count 4, bearing in mind in particular that this offence was deliberately committed by the respondent in breach of one of
the conditions attached to his bail, I would sentence the respondent to 9 months' imprisonment. On Count 5, possession of cannabis, I would fine the respondent $200. I would further order that three months of the sentence imposed on Count 2 and three months of the sentence imposed on Count 4 be served cumulatively, each upon the other and upon the sentence imposed on Count 1, thereby producing a total effective sentence of 18 months' imprisonment.
I am not sure that had I been sentencing at first instance I would have been persuaded to make an order to the effect that such sentences be wholly suspended, had it not been perhaps for the fact that the respondent had already spent some 65 days in custody; but I agree with the submission of the prosecutor that that was an option reasonably open to the sentencing judge and, given all of the circumstances of this case (and in particular that this is a Director's appeal, that this is a young man with no previous convictions, and that he has been at liberty since he was sentenced on 8 February last) I think the sentences now imposed should be wholly suspended. I would, therefore, suspend them for a period of two years from this date
In case it ever comes about hereafter that these sentences have to be served in custody, the respondent should have the benefit of the 65 days already spent in gaol, and a declaration to that effect should be made under the relevant section of the Sentencing Act.
WINNEKE, P.:
I agree that the appeal should be allowed for the reasons given by Phillips, J.A. and I also agree with the orders which have been proposed. The circumstances surrounding the commission of the offences, particularly those charged in Counts 1 and 2 of the presentment, were in my view serious examples of their kind. They were such serious offences that it was, in my opinion, an error of principle for the judge to have imposed the penalties which he did, and which did not record a conviction and did not impose sentences of imprisonment.
I am conscious of the submissions which Mr Thomas has made on the respondent's behalf that this Court should not lose sight of the fact that this is a Crown appeal and for which the respondent is being called upon to stand his sentence a second time, and that we should be slow to disturb the sentence of discretion exercised by the judge.
After giving the matter careful thought, and being mindful of the principles to which Mr Thomas has referred, I am nonetheless of the view that this Court would be failing in its duty and sending altogether the wrong message to the community if it allowed his Honour's sentences to stand.
O'BRYAN, A.J.A.:
I, too, agree the appeal should be allowed for the reasons given, and I agree with the orders proposed by Phillips, J.A.
WINNEKE, P.:
The formal orders of the Court are the appeal is allowed. The sentences below are quashed and in lieu thereof this Court convicts the respondent on all 5 counts and imposes sentences as follows:
On Count 1, 12 months' imprisonment.
On Count 2, 12 months' imprisonment.
On Count 3, 6 months' imprisonment.
On Count 4, 9 months' imprisonment.
On Count 5, a fine of $200.
Three months of the sentences imposed on Counts 2 and 4 are to be accumulated upon each other and upon the sentence imposed upon Count 1.
The total effective sentence will therefore be one of 18 months' imprisonment.
The Court pursuant on s.27 of the Sentencing Act orders that the sentences imposed be wholly suspended for an operational period of two years from today's
date.
In the event that it becomes necessary to take the matter into account we declare pursuant to s.18 of the Sentencing Act that the respondent has already served a term of 65 days pursuant to the sentences which we have imposed. I direct that that declaration and its details be noted in the records of the Court.
Mr Koc, would you mind standing up.
The Court is required to tell you that the suspension of a sentence does not mean that you are going away scot-free of the possibility of incarceration. The suspension of the sentence means this: for a period of two years from today's date you are not to commit any further offence which is punishable by imprisonment, but if you do you can be called up immediately and ordered to serve the suspended sentence, or the terms that we have imposed. Do you understand that?
PRISONER:
Yes, I do, Your Honour.
WINNEKE, P.:
So we will ask you in all the circumstances to always bear that in mind, that you are under suspension for an operational period of two years from today, and to be of good behaviour during that time.
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