Khayre v The Queen
[2013] VSCA 286
•14 October 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0079
| YACQUB KHAYRE |
| Applicant |
| v |
| THE QUEEN |
| Respondent |
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| JUDGES | NEAVE And COGHLAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 23 September 2013 |
| DATE OF JUDGMENT | 14 October 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 286 |
| JUDGMENT APPEALED FROM | DPP v Khayre (Unreported, County Court of Victoria, Judge Hampel, 12 October 2012) |
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CRIMINAL LAW – Leave to appeal against sentence – One charge of aggravated burglary, two charges of theft, one charge of causing injury intentionally, one charge of causing injury recklessly and one charge of stating false name – Total effective sentence of 5 years 6 months’ imprisonment – Non-parole period of 3 years – Whether judge erred in approach to previously served time on remand for charges later acquitted of – Time on remand appropriately regarded – Whether judge erred in failing to find the applicant remorseful – Whether sentence manifestly excessive – Serious example of aggravated burglary – Leave to appeal refused.
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| Appearances: | Counsel | Solicitors |
| For the applicant | Mr C T Carr | James Dowsley & Associates |
| For the Crown | Ms F L Dalziel | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA:
I agree with Justice Coghlan that the application should be refused.
COGHLAN JA:
On 4 October 2012 the applicant pleaded guilty to the charges set out in the table below. On 12 October 2012 he was sentenced as follows.
Charge on Indictment Offence Maximum Sentence Cumulation 1 Aggravated burglary [s 77(1) of the Crimes Act 1958] 25 years 3 years Base 2 Theft [s 74(1) of the Crimes Act 1958] 10 years 1 year - 3 Theft [s 74(1) of the Crimes Act 1958] 10 years
1 year - 4 Causing injury intentionally [s 18 of the Crimes Act 1958] 10 years 3 years 2 years 5 Causing injury recklessly [s 18 of the Crimes Act 1958] 5 years 1 year 6 months Summary charge State false name [s 456AA(3) Crimes Act 1958] 5 penalty units Fined $250 - Total Effective Sentence: 5 years 6 months imprisonment Non-Parole Period: 3 years Pre-sentence Detention Declared: 173 days 6AAA Statement: 8 years with non-parole period of 6 years Other orders:
Disposal Order pursuant to s 78(1) of the Confiscations Act 1997..
A summary of the offending is set out in the respondent’s written case,
In the early hours of Sunday 22 April 2012 the applicant entered a home in Riggall Street, Dallas, as a trespasser. Upon entry, he was armed with a flick knife. He was carrying a torch and a black bumbag and was wearing gloves. At the time of entry, Ridvan Barca was asleep in the house. The charge of aggravated burglary was based upon entering the house with an intention to steal and having with him at the time an offensive weapon, namely a knife. [Charge 1 – aggravated burglary]
The applicant entered the bedroom of Tolga Barca and removed a quantity of property belonging to Tolga Barca including an Apple iPod and watch. [Charge 2 – theft] The applicant also went into the bedroom of Dilara Barca and removed a quantity of property belonging to her, including a laptop computer, hand bag, jewellery and money tins containing coins. [Charge 3 – theft]
At approximately 2.40am Dilara Barca returned home to find the applicant in her bedroom. Ms Barca turned on the light to find the applicant standing in front of her – the applicant and Ms Barca screamed. The applicant dropped the bags he was carrying and attempted to pass Ms Barca. He punched Ms Barca to the face and in the stomach causing her to double over. The applicant then punched her in the back. The applicant left the bedroom and ran into the toilet before punching Ms Barca on both shoulders. [Charge 4 – causing injury intentionally]
Ridvan Barca, the father of Tolga and Dilara, came out of his bedroom to see his daughter being assaulted by the applicant. The applicant punched Mr Barca to the face and head butted him causing his nose to bleed. Mr Barca and his daughter wrestled with the applicant and eventually got him to the ground where he and his daughter sat on him to restrain him until the police arrived.
The applicant was arrested and taken to Broadmeadows Police Station. He was assessed by a forensic medical officer and was deemed unfit for interview by reason of his drug or alcohol affected state. At approximately 6.04 pm that evening he was interviewed by police and made a largely no comment record of interview. Both at the time of his arrest and at the time of interview, the applicant told police his name was Ahmed Ali. [Summary charge – State false name]
On 16 May 2013 the applicant filed a Notice of Application for Leave to Appeal against sentence.
Originally there were five proposed grounds of appeal, but counsel did not persist with grounds 3 and 5 at the hearing. The remaining grounds are:
Ground 1 – The sentencing judge erred in her approach to the 16 months of ‘dead time’ served on remand until 23 December 2010.
Particulars:
(i)The learned sentencing judge failed to take into account the adverse effect of the ‘dead time’ upon the applicant, and its role in his re-offending.
(ii)The learned sentencing judge erred in refusing to give any discount for the ‘dead time’ on the basis that the applicant had not shown he was the “victim of any considerable injustice”.
Ground 2 – The learned sentencing judge erred in finding as an aggravating feature of the intentionally causing injury that the offence comprised “repeated acts of gratuitous violence”
Ground 4 – The learned sentencing judge erred in failing to find that the applicant was remorseful.
Ground 6 – The individual sentences imposed, the orders for cumulation, and the non-parole period are each manifestly excessive.
At the hearing, proposed ground 2 was only faintly pressed. Counsel for the applicant foreshadowed a ground relating to fresh evidence, based upon the conditions in which the applicant was being held, but did not pursue it.
Counsel for the applicant candidly admitted that the matters contained in proposed grounds 1 and 4 were really particulars of ground 6.
Proposed ground 1 - 16 months ‘dead time’
It was common ground that the applicant had been charged with terrorism offences and detained on remand from about August 2009 to 23 December 2010. He was acquitted of these offences.
The present offending took place on 22 April 2012 i.e. about 15 months after the applicant’s release. Before he committed the present offences the applicant had appeared before the Melbourne Magistrates’ Court on 28 and 29 November 2011 for offences committed in June, July and August 2011, that is after he was released following his acquittal for the terrorism offences. At that time counsel for the applicant told the Chief Magistrate who sentenced the applicant on both occasions that the applicant had served 16 months ‘dead time’ on the terrorism offences. It is impossible to know what weight his Honour gave to this matter. However three of the offences were quite serious and the fact that the total effective sentence imposed was time served of 111 days, suggests that the applicant’s detention on remand was probably taken into account.
During the plea hearing counsel for the applicant did not submit that the time on remand should be taken into account as ‘dead time’ but rather that the remand period had a deleterious effect on the applicant so that when he was released he relapsed into using drugs and began re-offending. Although that submission was not made, the prosecutor drew her Honour’s attention to the authorities dealing with ‘dead time’.[1] In response her Honour said that:
And I understand Ms Hartnett's using [the period in custody for the terrorism offences] it more to say - to speak of the effect that it had on him and its connection with the almost inevitability after that of the offending cycle that he then got into.
[1]Reference was made to Warwick v The Queen [2010] VSCA 166 and Karpinski v The Queen (2011) 32 VR 85; see also Vella v The Queen [2011] VSCA 136 at [32].
Counsel for the applicant on the plea did not disagree with that proposition.
In support of proposed ground 1 the applicant submitted that her Honour was required to give the applicant some credit for the ‘dead time’ as well as being obliged to have regard to the deleterious effect that that period of incarceration had had on the applicant. It was submitted that her Honour had erred in saying that:
There is no basis to find, as was the case in Warwick v The Queen , that you had been the victim of considerable injustice, so justifying a reduction in the sentences to be imposed for these offences.[2]
[2]Reasons [30].
The applicant submitted that this meant that her Honour had taken the view that it was necessary to show a further element of injustice, in addition to the fact that an offender had served time for an offence of which he had been acquitted, before he or she could receive any credit for that ‘dead time.’ This was said to be inconsistent with Weinberg JA’s statement in Karpinski v The Queen[3] that it was the fact of an offender’s acquittal of a previous offence for which he or she had been detained that gave rise to injustice, thus requiring consideration of whether and the extent to which the dead time should be taken into account.
[3](2011) 32 VR 85, [8].
The Crown conceded that her Honour had wrongly taken the view that lawful remand pending trial was not an injustice which required the judge to consider whether dead time served for an offence of which an accused was acquitted to be taken into account. Nevertheless the Crown submitted that her Honour had correctly concluded that she did not need to have regard to the ‘dead time’ served, because it had already been taken into account by the Chief Magistrate.
Conclusion on ground 1
In R v Kotzmann[4] Callaway JA observed that a prior period of detention is not ‘a kind of bank balance’[5] which can be drawn upon by a person when he or she is sentenced for a later offence.
[4][1999] 2 VR 123, 137.
[5]Ibid [42].
That view has been qualified in later cases. In Karpinksi v The Queen[6] Weinberg JA expressed the view that ‘the law regarding the credit to be given for pre-sentence detention in respect of unrelated offending is in an unsatisfactory state.’ His Honour observed that:
Since Renzella, there has been a steady growth in reliance upon so-called “dead time” as a mitigating factor. In my view, however, Renzella “dead time” is often now invoked in circumstances where its application is difficult to justify, either as a matter of logic, or in principle.
In Warwick v R,2 the court noted that the circumstances of that case, and many others like it, were entirely different from those which obtained in Renzella. Now, in many cases, the period of detention which is sought to be brought to account concerns conduct that is not only unrelated to the matters for which the accused stands to be sentenced, but also involves time that has been wrongly served in the past, and sometimes even the distant past.
Any accused who has been wrongly imprisoned is, of course, the victim of a grave injustice. It does not follow, however, that it is society’s duty to ameliorate that injustice by giving the accused credit for the time spent in custody when he is sentenced at a later time for entirely unrelated offending.[7]
[6](2011) 32 VR 85, 86, [2].
[7]Supra [5]-[7].
Despite the reservations expressed by Weinberg JA, in Karpinski the Court held that the sentencing judge should have taken account of a period of detention which the offender had previously served in custody having been charged with attempted murder, that charge having been later resolved by the entry of a nolle prosequi.
I consider that the concession made by the Crown on ground 1 was probably unnecessary. I do not read her Honour’s remarks as indicating that the 16 months’ imprisonment should be ignored, because the applicant’s detention on remand was lawful. In her reasons her Honour said:
In my view, the circumstances here do not justify a significant reduction in the sentence to be imposed for these offences by reason of that 16 months that you spent on remand in relation to the other unrelated offences, and in respect of which you had been released before committing these offences.[8]
[8]DPP v Khayre (Unreported, County Court of Victoria, Judge Hampel, 12 October 2012), [30].
This statement related to the weight to be given to the prior period of imprisonment, rather than to whether it should be taken into account at all. Further, counsel for the applicant did not submit that the judge should take account of the ‘dead time’ and did not disagree with her Honour’s suggestion that the prior period of imprisonment was primarily relevant to the fact that the applicant had re-offended and gone back on drugs after he was released.
Finally, there is a strong inference that the time served was taken into account, at least in general terms, by the Chief Magistrate. It may well be that this was the reason that her Honour did not give it much weight. The onus is on that applicant to show that this was not the case.
It was also argued that her Honour had had insufficient regard to the effect of 16 months of incarceration, in very difficult circumstances, upon the applicant’s re-offending. In April 2007 the applicant was sentenced in the Broadmeadows Magistrates’ Court to be detained in a Youth Justice Training Centre for 2 years for a series of burglaries and thefts and other offences. In June 2007 he was sentenced in the County Court to 12 months suspended for 3 years for intentionally causing injury and attempted armed robbery. He was released in about April 2008. It was submitted on the plea that over the next year he was not in trouble and was drug free. He apparently spent some of that time overseas.
It was submitted that his arrest and detention brought the process of reformation to an end and warranted significant weight in sentencing him for the current offences. Although one would accept readily enough that the incarceration under the harsh conditions endured by the applicant could have had an adverse effect on him, there was no evidence before her Honour as to what its effect was. What was clear enough was that not long after release the applicant continued using ice, broke up with his family and started reoffending. Her Honour was told of some outstanding matters which must have been committed either before August 2011 or between November 2011 and April 2012.
In her sentencing remarks, her Honour said:
I can only echo what Judge Gullaci said when sentencing you: if you do not stop abusing drugs, you have limited prospects for rehabilitation. It would appear that each time you have been released from detention or custody, you have rapidly turned back to drug abuse, and nothing has been put to me to indicate that you demonstrate any will or commitment to address it.
There is a real risk you will become even more isolated than you are now, institutionalised, and at increasingly high risk of reoffending. You are only 24 and you have spent more time in custody than in the community since your late teens. You went from youth detention to high security detention in a adult prison at only 20, and you faced the prospect of life imprisonment throughout that time. However it was that you came to be released, that 16 months of your youth is a time you will never get back.
Given your youth, and despite the gloomy prospects presented to me, I consider I should impose a sentence which will provide encouragement to you to address your drug problem in custody, and to have available to you the prospect of release on parole and support and supervision on parole, so as to assist you to remain offence and drug-free upon your release.[9]
[9]Ibid [31]-[33].
I agree with her Honour that the evidence showed that applicant’s offending was closely related to his drug problem. For these reasons I would refuse leave to appeal on proposed ground 1
Proposed ground 4 – Remorse
On the plea, counsel for the applicant said:
If I could say this, Your Honour, at the risk of giving evidence from the Bar table, he is a young man with insight. He is well aware, Your Honour, of why he is here and the effect that his use of Ice had on his behaviour and the circumstances and the seriousness of the offending. It's almost incongruous that a person who can be involved in such violent offending and really just frightening offending - again I might get in trouble for giving evidence from the Bar table but in conference, Your Honour, he is polite, respectful, well spoken, shows great humility.
HER HONOUR: What does he say about his hopes or plans for the future?
Counsel: Your Honour, he just wants to get through a sentence. He understands, Your Honour, that he will be back if he resumes drug use and that is as far as he is able to look forward. He understands what parole will be. He also understands, Your Honour, that in some respects his adult parole, and this will be the first adult parole period, will be far different from his period of parole when he was released from Malmsbury in that he is very much a - and I don’t want this to sound trite but it's very much a hand holding exercise to some extent. That will not be the case when he's on adult parole. If he doesn’t comply he'll be breached and he will have to serve some of all of the parole period.
It was not submitted that the applicant was remorseful as such. Instead counsel for the applicant contended that the applicant now had some insight into the effect of and his reasons for offending. In her sentencing remarks her Honour said that:
This, unfortunately, is not your last matter before a court. You have other, unresolved charges pending, although these are the most serious of them. I hope that the other matters will soon come to finality too, that you will then be able to have a certain sentence and a certain release date, and that you will be able to use the remaining time in custody to reflect, to develop hope for a more rewarding future, to start to think about and to implement strategies for remaining drug-free and to assist you to re-engage with family and friends who are not part of the drug subculture, and so look forward to having a better and more rewarding life in your mid-20s and thereafter than you have had since your late teens to now. [10]
[10]Ibid [34].
I would reject the submission that her Honour did not have regard to the submission made by counsel on the plea. It was not necessary that the applicant’s claimed insight be treated as remorse, when it was not put on the plea the applicant was sorry for what he had done to the victims. This ground is not reasonably arguable.
Proposed ground 6 – Manifest excess
Complaint was made that too much emphasis was placed upon the seriousness of the offending and too little emphasis placed on the matters in mitigation including the applicant’s guilty plea. In the s 6AAA statement[11] her Honour said that she would have imposed a sentence of 8 years with a non-parole period of 6 years. Thus it is clear that her Honour did have regard to the plea of guilty.
[11]Sentencing Act 1991, s 6AAA.
The applicant also submitted that none of the offending constituted a serious example of the crimes charged and the individual sentences were out of proportion to the seriousness of the offending.
The seriousness of confrontational aggravated burglary was pointed out in Hogarth v The Queen.[12] Although these sentences were imposed before that decision, they were comparatively low, having regard to the nature of the offending and the applicant’s circumstances.
[12][2012] VSCA 302.
This was a serious example of aggravated burglary. The aggravating circumstance alleged in the charge was that the applicant was armed with an offensive weapon, rather than that he knew or was reckless as to whether there were persons present. However the entry occurred in the early hours of the morning into residential premises when it was highly likely that persons would be present. As her Honour correctly observed:
Features that add to or help identify the seriousness of this offending, and make therefore those considerations of punishment, denunciation and deterrence important in this case, include these:
·you broke into what was clearly a residential property, a family home, at night;
·you had a knife;
·you were wearing gloves;
·you were drug-affected;
·you have a serious previous conviction for attempted armed robbery and intentionally cause injury, the intentionally causing injury being stabbing a stranger after threatening him with the knife relating to a demand that he hand over relatively meagre possessions: any money he had on him and his phone. Therefore, the use of the knife and the stabbing of the knife are significantly disproportionate to the meagre financial gain you may have obtained;
·you have multiple prior convictions for burglaries and thefts;
·you have a long history of drug abuse and, on the material before me, it would appear you have not been prepared to address that or the offending associated with it. Attempts to assist you to address your drug abuse, both by bail conditions and by a sentence with a significant rehabilitative component to it, when you were sentenced to youth detention, have not deterred you in the past or led you to take any steps to address your drug abuse; and
·you assaulted the Ms Barca in circumstances where you came across her unexpectedly and tried to escape. Although, on one level, that can be seen as reactive, you struck her repeatedly. Therefore, they were repeated acts of gratuitous violence on somebody who was clearly a terrified young woman, and you struck her father - punched and head butted him in two separate acts - he an obviously much older man than you.[13]
[13]Ibid [24].
The victim impact statements show how seriously the victims were affected by the offences.
The applicant had learnt little from his incarceration of about four months between August and November 2011. Although the individual sentences for intentionally causing injury (charge 4) and recklessly causing injury (charge 5) were relatively high the circumstances of the offending, must have been quite terrifying, the attacks on both complainants were substantial and the applicant had relevant prior convictions.
Separate complaint is made about the orders for accumulation. However , apart from the cumulation of 2 years on charge 4, the orders were otherwise unremarkable. As was submitted on behalf of the respondent and as outlined above, the circumstances associated with the attack on Ms Barca warranted the accumulation of 2 years.[14]
[14]The attack could not be punished as part of the aggravated burglary. See R v Newman & Turnbull (1997) 1 VR 146.
Because it is not reasonably arguable that the individual sentences and the total effective sentence were outside the range reasonably open to the sentencing judge,[15] this proposed ground of appeal fails.
[15]R v Abbott (2007) 170 A Crim R 306.
If I am incorrect as to the particular matters raised by any of the grounds, I am satisfied that it is not reasonably arguable that different sentences should have been imposed for offending of this severity on a person with the applicant’s substantial prior convictions.
I would therefore refuse leave to appeal on all of the grounds.
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