DPP v Till

[2016] VCC 1976

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00499

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES SUTHERLAND TILL
CHARLES HI

---

JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	15 December 2016
CASE MAY BE CITED AS:	DPP v Till
MEDIUM NEUTRAL CITATION:	[2016] VCC 1976

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Duckett
For Accused Till	Mr M. McGrath
For Accused Hi	Ms B. Franjic

HIS HONOUR:

1James Sutherland Till (Till) and Charles Hi (Hi), you have pleaded guilty to an indictment charging you both in Charge 1 with aggravated burglary, in Charge 2 with armed robbery, and in Charge 3 with causing serious injury recklessly in circumstances of gross violence.  You have also each admitted your prior criminal record.

2The prosecution tendered and read to the court a summary which is Exhibit A.  The facts set out therein are not in dispute and I summarize them as follows.

3The victim in this matter is Mrs Sabiha Temiz (Temiz).  At the time of the offences she was 74 years of age.  She had been residing at 53/139 Highett Street, Richmond since it was built in the mid-1970s.  She lived there with her children until they moved out in the 1980s.  Since then she had lived by herself.  

4Temiz's main language is Turkish.  She speaks limited English.

5She has a heart condition.  At the time of the offending, her condition required her to carry a medical alarm known as  "Mepacs".  The alarm had to be pressed before 9 am each day and if it not pressed by 3 pm "Mepacs" placed a call to her daughter to advise her that the alarm had not been pressed.

6When Temiz slept, the alarm was next to her bed.  If she had a medical emergency and pushed the medical alarm, an ambulance was called and given a code to a locked key box that was outside her front door so that her flat could be accessed by the ambulance workers.

7There were three keys to Temiz's flat. One was held by her daughter, one was held by Temiz herself, and the third remained in the locked key box outside the front door to her flat.

8On Tuesday 25 August 2015 Temiz went to sleep sometime after 10 pm.

9On Wednesday 26 August sometime after 5 am, Temiz was woken by banging on her front security door and windows.  She could hear a man’s voice yelling "Open the door, Open the door."  On hearing this, Temiz went to the telephone intercom near the front door and called the building’s security guards saying "Help please, help please, two junkies, fifth floor, fifty three, fifty three".

10The security guard Mr Ishaq told Temiz that he could not come but that he would send someone.

11Before Temiz had a chance to hang up the telephone intercom, her front door opened and you Till and you Hi rushed into her flat.  You had used the key from the locked key box outside her front door to open the door.

12You, Till, attacked Temiz, grabbing her by the arms and swinging her into the living room.  You then pushed Temiz to the floor in front of the sofa breaking her hip.  One of you closed the door.

13You, Till, had pulled your hoodie over your head and you were wearing a hat.  You, Hi, had a mask like a balaclava with holes for your nose and eyes obscuring your face.

14You, Till, used your fists to punch Temiz to the face.  This fractured her cheek bone.  During this time you, Till, had a metal bar you had brought with you into the flat in your hands and were hitting Temiz to the body with it, causing bruising.  You were yelling at Temiz, asking her where her money was and where “the ice” was.

15You, Till, pushed Temiz onto the ground and sat on top of her.  When on top of her you grabbed her by the throat and were choking her.  At the same time you grabbed one of the pillows in the living room and held it over her face so that she could not see or breathe.  You were suffocating her.  Temiz saw blood on the pillow and knew that she was bleeding from the assault upon her.

16Whilst Temiz was being assaulted, you, Hi, were ransacking the flat.  Temiz saw you walk into her bedroom and take two bags that you filled with her valuables. 

17While this happened, Mr Ishaq, having taken the phone-call from Temiz, organized two security guards to attend at Flat 53.  He then called her flat to advise that guards were on their way.  You, Hi, answered the phone and when Mr Ishaq asked to speak to Temiz told him "It was my mother.  She went to sleep. Do not call us again. Everything is okay".

18At approximately 6.30 am, while Temiz was lying on the floor, the security guards she had called for earlier came to the door asking if she was okay.  You, Till, were still sitting on top of Temiz.  You punched her and put the pillow back over her face.  Temiz could not yell for help as you had a hand around her neck, choking her.  Both you Till and you Hi remained quiet while the security guards were outside. You, Till were telling Temiz "Don’t talk, shut up, shut up or I will kill you", putting your fingers to your mouth and saying "Shhhh".

19The security guards remained at the door for approximately two minutes.  During this time they spoke with Temiz's neighbor who confirmed that he had seen two men knocking at her door.  The security guards then left and did not open Temiz's door.

20Whilst Temiz lay on the floor, you Till started looking around her flat.  Temiz could not move at this time as her hip was broken. You Till returned to Temiz sporadically to swear at her and threaten her that you would kill her if she did not tell you where the ice was.  During this time you Till had taken a knife out and were waving it around and pointing it at Temiz.  At one stage you threw the knife towards her on the floor saying "I’ll kill you, I’ll kill you".

21Approximately half an hour after the two of you had broken in, you Hi told Till that the two of you should leave.  You Till said "You go, you go".  You Hi then left taking with you the two handbags that you had filled with Temiz's valuables.

22You Till remained in the flat.  When Temiz's Mepac alarm went off at 9 am you silenced it by pressing it.  During this time you searched the whole flat and destroyed most of it.   At one stage you found a hammer and used it to bash open the lock on the electrical box in the kitchen and put holes in the plaster in the kitchen.  You also used the knife to slash the furniture open.  During this time Temiz observed that you were "full of anger" and kept saying  "Where is the ice, where is the ice?" Temiz had no knowledge of what you were looking for.

23While she lay on the floor Temiz could hear you in the bathroom smashing tiles with the hammer.  You kept coming back to threaten Temiz by pointing the knife at her and threatening to kill her throughout the ordeal.  From time to time, you sat on her and assaulted her again.

24Temiz could not move due to the pain in her hip and was on the floor for so long that she urinated in her clothes.  It was only when you smashed her clock off the wall and she saw it was 11 am that Temiz had any idea of how long you had been in her flat..

25Between 11 and 11.30 am you left the flat, taking with you the metal bar you had arrived with, and two suitcases you had filled with her personal possessions obtained whilst you were ransacking her flat.  As you left you said "See you".

26Temiz lay on the floor until approximately 11.30 when she heard someone walking past and yelled "Help".  A cleaner from the flats came in and found her lying on the floor. The cleaner went to the foyer, organised for 000 to be called and then returned to Flat 53, where Temiz asked her to get her phone and to ring her daughter.  Temiz then spoke with her daughter, telling her what had happened.  Police and an ambulance were then called.  

27At approximately midday paramedics arrived at the building.  They observed Temiz had dried blood to her face with black bruising to her left eye, cheeks, upper right side of her arm, left index finger, left hip, upper leg area and bottom.  Initially Temiz was treated for the pain that she was in and then taken to the Alfred Hospital as a signal one priority due to her medical history.

28According to her account, Temiz was sure that she was dying when you, Till, assaulted her.  She says that she sees your face every time she closes her eyes. 

29At approximately 11.45 pm when Mr Ishaq started his shift at the building for the night, he was contacted by the control room operator at 108 Elizabeth Street.  Mr Ishaq told the operator what had occurred the previous morning and was asked to put it into a statement.

30After Mr Ishaq had made a brief statement he realized that he recognized the male’s voice on the phone the previous night as belonging to a male calling himself "Charlie" that stayed at Flat 127 claiming it was his mother’s flat.  Mr Ishaq then viewed the CCTV from the previous night, and from 3 am to 6.30 am he saw the male "Charlie" ( which is you, Hi) with two other males known as "Hunter" (which was you, Till) and "Justin" travelling in the lifts between floors of the building.  Neither you Till nor "Justin" were tenants at the building, but had told Mr Ishaq that you were staying with "Charlie" at Flat 127.

31An hour later Mr Ishaq saw you Till on the CCTV footage behaving suspiciously and called the control room operator, asking for R2 to go and see what was going on.  Mr Ishaq then saw you Till come out of the lift into the foyer.  When he asked you what you were doing there, you told him that you were visiting a friend at Level 11.  Mr Ishaq thought that was strange.  You Till then asked if you could get your "stuff" from the laundry on Level 11.  While Mr Ishaq spoke with you, he organised for the police to be called.

32Police arrived and spoke with you Till.  A search was conducted of you.  In your wallet were found numerous identity cards belonging to Temiz.  The police then went with you to the laundry on the 11^th floor where various items of clothing, two bags and a metal bar were located.

33You were then taken to the Richmond Police Station where at 3.12 am a record of interview was commenced and suspended for further inquiries to be made by the investigating officers.

34At 10.48 am that record of interview was re-commenced and you Till stated as follows:

35Question 40 to 54 – That you were at the flats visiting other people and also to score drugs and that you could not remember where you were yesterday morning as you could not really remember yesterday, and you was staying two nights out of seven at 139 Highett; all over the place.

36At Questions 55 to 73 –  you said that you could not tell them anything about the incident and did not want to do an id parade as you could be targeted.

37Question 74 - you said that you had not heard anything about it, and that your laundry was on the 11th floor, as you had nowhere to stay.

38The interview was then suspended again at 10.5 9am.  At 9.07 pm the record of interview was re-commenced.  When the record of interview was re-commenced you chose to exercise your rights and make a "no-comment" response whilst acknowledging that an old lady had been hurt, and asking whether she was alive or not. 

39You Hi were also arrested at the same building.  You initially gave a false name and told arresting officers that you were visiting your aunt, who you claimed had recently been burgled.

40You were then searched and a silver-coloured knuckle duster with sharp blades was located in your back pocket.  A Taxi Commission MPTP card in the name of Temiz was found in your underwear.

41You were then taken to the Richmond Police Station for processing.  At about
3.31 am, a record of interview was commenced, but suspended for further inquiries to be made by investigating officers.

42At 11.06 am the record of interview was re-commenced.  The gist of what you told police in that interview was initially to deny any knowledge of the offences, then to shift the blame for the offences almost entirely onto your co-offender Till, and to minimise your role in the offences to the point of denial of criminal participation.  Indeed, you claimed falsely that you did what you could “to help the old lady”.

43On 27 August 2015 police attended your home address at 127/139 Highett Street, Richmond and executed a search warrant.  During the search, police seized numerous documents and articles belonging to Temiz.

44Temiz was treated at the Alfred Hospital where medical staff confirmed that she had injuries to her left femur and that her left hip suffered a closed fracture requiring a half-joint replacement.  A fracture was also sustained to her left cheek bone that did not require surgery.

45The medical evidence suggests that without treatment it was probable that the injuries to Temiz would have caused her death.  Whilst much of the bruising has healed, Temiz has not regained mobility and has been unable to return to her home or live unassisted.

46The prosecution tendered victim impact statements from Temiz and her daughter, Ms Ismail.  They were read to the court by the prosecution.  Not surprisingly, the impact upon Temiz has been catastrophic.  Her mobility is severely restricted and she is dependent upon use of a four-wheel walking frame.  She can no longer live by herself in her own home and has been forced to live in a nursing home.  Although she has significant ongoing physical consequences, she describes the "emotional pain" as worse than the physical pain.  Again, not surprisingly, the offending has had a substantial adverse ripple effect amongst other family members.  I am required to take into account the serious impacts of your offending upon your victims, particularly Temiz.

47Turning to matters personal to each of you, starting with you Hi.  Your counsel provided me with an Outline of Plea submissions, which is Exhibit H1. I also received a report from Warren Simmons, psychologist, which is Exhibit H2.  The report sets out useful information about your background.  You are 33 years of age.  You were 32 years old at the time of the offending.  You were raised in Timor until the age of ten years, when your family migrated to Australia and settled in Richmond.  Apparently your parents were killed in Timor when you were a child.  You were raised by a maternal aunt who effectively became your mother.  You did not speak English when you arrived in Australia, but you are at least of average intelligence and did quite well at school, completing year 12.  Thereafter, your employment history was intermittent until substance abuse led to you ceasing work some four or five years ago.  Since age 18 years you have abused a range of illicit substances, particularly methylamphetamine and heroin.  You underwent a three-month rehabilitation period at Odyssey House and a community residential drug withdrawal program. 

48You suffer from symptoms of post-traumatic stress disorder.  The psychologist has opined that this condition will make your time in custody more onerous.  He also suggests that there is a link between that condition and substance abuse and between substance abuse and your offending behavior.  Mr Simmons notes that you appeared to him to be extremely remorseful and accepting of your criminal responsibility for these offences.  He concludes by saying that “with appropriate intervention, it was felt that you, Hi, would be at a lower risk of further offending”.  I pause to say that these observations may reasonably be accepted, but I see no basis for concluding that your prospects of rehabilitation at this time are other than poor. 

49It was submitted by your counsel that I should find that the Verdins propositions five and six are engaged.  I accept that proposition five is supported by
Mr Simmons’ report.  I do not find clear support for proposition six, but am inclined to accept that there is sufficient support in the report.  I therefore propose to reduce the sentence you might otherwise have had to serve on the basis that your PTSD condition will make serving your sentence harder than a person without that condition, and on the basis that being incarcerated for a significant period of time will involve a substantial risk that your PTSD symptoms may increase in severity.

50You are both, that is you Hi and you Till, entitled to credit for your pleas of guilty.  They have significant utilitarian value and are consistent with remorse and acceptance of criminal responsibility.

51In respect of you Hi, your counsel submitted that in assessing the objective seriousness of your offending, the following matters are germane.  Firstly, at the time of entering the flat, your intention was to steal, not to assault.  Secondly, you were not personally armed at any stage of the offending conduct.  Thirdly, although you have pleaded guilty to the offence of recklessly causing serious injury on the basis of your participation in a joint criminal enterprise, you did not yourself assault or participate directly in the assaults upon Temiz.  Fourthly, you ceased your involvement after about half an hour, well before Till.

52That said, I note that you did not intervene, physically or orally, to prevent Till continuing his assaults upon Ms Temiz.  Nor did your offer her any comfort, assistance or treatment.  Nor did you do anything to relieve her plight after you left her home.  What you did was to participate in the offending by entering the home of Temiz with intent to steal, knowing that Till was armed with an iron bar and knowing that it was probable Till would inflict serious injury upon Temiz recklessly.  Once inside, seeing the assaults by Till upon Temiz, you continued to encourage his conduct by your voluntary presence and lack of dissent, you participated in an extended armed robbery upon Temiz, taking advantage of her incapacity to steal her valuables.  You remained at the premises for about half an hour.  You had plenty of opportunity to react with disgust at the conduct of Till towards Temiz.  You continued with your participation and, when security guards telephoned to check on Temiz, you wilfully deceived them into believing you were her son and that all was well.  You participated in ensuring that security guards who came to the door were not alerted to her plight.  Your conduct towards Temiz was callous, cowardly and deplorable.  It demands a high level of denunciation.

53Whilst the court deals frequently with offenders owning worse criminal records than yours, you have a significant criminal record going back to 2003.  The offences for which you have been sentenced previously are not untypical of those of persons with substance abuse issues of the kind that have blighted your life since you were 18 years old.  You have been given opportunities to rehabilitate yourself.  As recently as February 2015, you were sentenced to a community correction order for 15 months for offences including burglary and assault with intent to rob, the conditions of which were designed to facilitate your rehabilitation by addressing your substance abuse issues.  By engaging in this offending you breached that order.  You were the subject of breach proceedings in the Magistrates’ Court on 3 December 2015 as a result of other breaches of the same order.  The order was cancelled and you were sentenced to four months' imprisonment.  On 11 February 2016 you were sentenced to 20 months' imprisonment for other offences committed between June and August 2015.  You are currently serving that sentence.  I need to consider that sentence, along with other relevant factors, in applying the totality principle.

54I accept that you are now remorseful and ashamed of your offending conduct.

55Turning to matters personal to you Till.  Your counsel provided me with an outline of plea submissions which is Exhibit T1.  I was also provided with a letter from Odyssey House dated 22 August 2016 (Exhibit T2), a report dated
9 September 2016 from Dr Pandurangi, consultant psychiatrist (Exhibit T3), letters from your mother and from your former partner, and a letter by you dated September 2016, in which you express remorse.  I was also provided with a return of prisoners concerning your conviction and sentence in the County Court in
May 2006, and certificates showing you have applied yourself to rehabilitation whilst on remand for these matters.

56You are 37 years of age.  You clearly had a difficult upbringing.  You have a long history of substance abuse.  You have a long and bad criminal record, including a conviction for aggravated burglary, although the relatively modest term of imprisonment imposed does suggest that it was a much less serious offence than that in Charge 1 on this indictment.  You have a history of moderately severe depression beginning in your early teens.  That condition is apparently responding to appropriate treatment.  You also have a history of alcohol and drug abuse that has resulted in episodes of drug-induced psychosis.  You have attempted rehabilitation through Odyssey House during periods when you have not been serving sentences of imprisonment.  There, it seems you met the mother of your six-year-old son, Gordana Stojanovic, (the author of one of the letters of reference tendered on your behalf) and also you met your co-offender, Hi.  Ms Stojanovic speaks in her letter of the positive contribution you have made to your son’s life.  She suggests this offending is "extremely out of character".

57Given your history of relapse into drug abuse following what seem to be genuine attempts at rehabilitation, I cannot assess your long-term prospects of rehabilitation as better than poor.

58There are signs that you have become somewhat institutionalized after many periods of imprisonment, and that you have been able better to deal with emotional stress whilst you have been incarcerated.  That is unfortunate.  But it is a consequence of your own actions.  This court has no choice other than to impose a substantial term of imprisonment upon you.

59I accept that you are remorseful for and ashamed of your offending conduct, which you attribute to your drug abuse.

60You were the principal offender in relation to Charge 3.  It was you who carried out the physical assaults and inflicted the serious injuries upon Temiz.  You also remained in Temiz's home for several hours in pursuit of the objects of Charges 1 and 2.  It will therefore be necessary for me to reflect those facts in sentences which are more severe than those imposed upon your co-offender. 

61You now appear to recognize that your conduct towards Temiz was utterly despicable, cowardly and brutal.  From the moment you pushed her to the ground and fractured her hip, Temiz was helpless and completely at your mercy.  You showed her none.  Your continuing assaults upon her were shamelessly driven by what can only reasonably be described as an inhuman urge to achieve the object of your crimes at any cost.  It is no excuse that you were disinhibited by taking illicit drugs.  Your moral culpability for the offending the subject of Charge 3 is of a particularly high order. 

62I regard the moral culpability of each of you as very high in relation to Charges 1 and 2.  Your planning may not have been careful, sophisticated or of long duration.  It was no doubt drug-fuelled, ill-informed and ill-considered.  But you each set out deliberately to enter the home of an elderly and vulnerable woman to steal from her in circumstances that were calculated to terrify her.  You Till were armed with a weapon, and you both anticipated the probability that serious injury would be inflicted upon your primary victim.  These were callous and shocking crimes.  Although in your case Hi, your moral culpability in respect of Charge 3 is less than that of Till, it still remains high.  Again, in relation to Charges 1 and 2 in your case Hi, your moral culpability is very high, though less than that of Till, in that you left the scene considerably earlier than he did and did not persist with your offending with to the same extent as Till.

63In the case of each of you, I am required to impose the least sentence necessary to meet the applicable sentencing principles.  No sentence other than immediate imprisonment is appropriate.  Offending as serious as this demands that the court expresses its denunciation in strong terms.  Individual deterrence is a significant sentencing consideration, as is just punishment and protection of the community.  General deterrence is a very significant principle for offending such as this.

64I am also required to consider parity of sentence as between you, reflecting the roles played by each of you in the offences and the differences in your personal circumstances.  I am required to facilitate your rehabilitation to the extent that is possible in the light of other sentencing considerations.  The totality principle is to be applied so as to moderate the degree of cumulation between sentences for individual offences, and taking into account the sentence you Hi are currently serving, so as to achieve a just total effective sentence.  I must also be careful to avoid double punishment arising from overlap of the three offences on the indictment.  The maximum term of imprisonment for Charges 1 and 2 is 25 years and for Charge 3 the maximum is 15 years. 

65I am now ready to impose sentence upon you, would you please stand, dealing first with you, Mr Till.

66I convict you on all three offences charged on the indictment.  On Charge 1, I sentence you to eight years' imprisonment.  On Charge 2, I sentence you to seven years' imprisonment.  On Charge 3, I sentence you to seven years' imprisonment.  I order that one year of the sentence on Charge 2 and three years of the sentence on Charge 3 be served cumulatively upon one another and upon the sentence on Charge 1.  The total effective sentence is imprisonment for 12 years.  I order you to serve nine years' imprisonment before you become eligible for parole.  I declare 476 days pre-sentence detention as time to be reckoned as served on the sentences I have imposed, and deducted administratively for the time you will actually serve.  I order that those facts and details be noted in the records of the court.

67But for your pleas of guilty I would have sentenced you to total effective sentence of 16 years' imprisonment with a non-parole period of 12 years.  You can sit down now.

68In your case Hi, I convict you on each charge.  On Charge 1 you are sentenced to imprisonment for seven years.  On Charge 2, you are sentenced to imprisonment for six years.  On Charge 3, you are sentenced to imprisonment for six years.  I order that one year of the sentence on Charge 2 and two years of the sentence on Charge 3 be served cumulatively upon one another and upon the sentence of seven years on Charge 1.  The total effective sentence is therefore ten years' imprisonment, and I order that you serve a period of seven years imprisonment before you become eligible for parole.  Those sentences are to commence today.  The effect of that order is to achieve partial concurrency with the sentence you are currently serving.

69But for your pleas of guilty, I would have sentenced you to a total effective sentence of 13 years' imprisonment with a non-parole period of ten years. I make the disposal order in the terms of the draft that I have been provided.

70       Are there any other orders that I need make?

71       MR MCGRATH:  Your Honour, just to confirm that - by my calculations the      presentence detention was 476 days not including today?

72       HIS HONOUR:  Yes.  Well, I think I have made that order anticipation - - -

73       MR MCGRATH:  You did, Your Honour.

74       HIS HONOUR:  Anyway, thank you for confirming that.  All right.