R v Abdullah Terkmani

[2008] NSWDC 358

CITATION:	R v Abdullah TERKMANI [2008] NSWDC 358
JUDGMENT DATE:	14 November 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Non-parole period of 2 years. Balance of term of 2 years. NB : THIS SENTENCE WAS APPEALED. PLEASE SEE R V TERKMANI [2009] NSWCCA 142.
CATCHWORDS:	CRIMINAL LAW - sentence - found guilty by jury - aggravated break enter and commit serious indictable offence - standard non-parole period - circumstances of aggravation including offender being in company, offender knowing there were persons in the house, offender armed with an offensive weapon, offence planned - age as mitigating factor - prospects of rehabilitation - whether or not within the middle of the range of objective seriousness
LEGISLATION CITED:	Crimes Act 1900 s 112(2) Crimes (Sentencing Procedure) Act 1999 s 21A
CASES CITED:	Regina v Way (2004) 60 NSWLR 168 Regina v Joel Tory, Regina v Luke Tory [2006] NSWCCA 18 Regina v Millar [2005] NSWCCA 202 Regina v Price [2005] NSWCCA 285
PARTIES:	Regina Abdullah Terkmani
FILE NUMBER(S):	2007/14794
SOLICITORS:	Director of Public Prosecutions Jn Legal

JUDGMENT

HIS HONOUR: Mr Terkmani I am going to sentence you now. First I give my reasons which will take twenty minutes or so. I read out why I am reaching the decision that I am and then at the end of that I will sentence you and you will hear what the sentence is. Do you understand that?

OFFENDER: Yes.

HIS HONOUR: And I do not tell you in advance what the sentence is because I want you to listen to the reasons.

1. I am sentencing Abdullah Terkmani for a very serious crime. The crime is aggravated break enter and commit serious indictable offence. The serious indictable offence is an assault occasioning actual bodily harm. The crime is against s 112(2) of the Crimes Act 1900. The crime carries a maximum sentence fixed by Parliament of fourteen years imprisonment. Not only that, Parliament has fixed to this crime what is called a standard non-parole period. The standard non-parole period for this crime is five years.

2. The main issue that I need to resolve in sentencing Mr Terkmani is whether or not I apply the standard non-parole period.

3. First I need to say what happened to bring about Mr Terkmani being charged with this crime. It was about 7.30 on the night of 15 December 2004. Dean Phillips was at home with a friend, Kristina Wren. Mr Phillips’ house - mate, Anthony Halliwell, was away for the weekend. Mr Phillips heard the front door bell ring. He ignored it. It kept ringing. Mr Phillips looked through the front window and saw a man - the jury found beyond reasonable doubt it was Abdullah Terkmani - standing outside the house. He was standing there with somebody else. Mr Phillips recognised neither of them. The men were demanding to know where Tony Halliwell was. Mr Phillips told them to go away and that he was going to call the police.

4. What happened then must have been a shocking experience for both Mr Phillips and Ms Wren. It is a householder’s nightmare. Mr Terkmani went next and got a brick from a pile of bricks. He threw it through the front window of Mr Phillips’ home. He then produced a knife. He tried to get into the house through the broken window. The other man stayed on the porch while this was happening. Mr Phillips tried to resist Mr Terkmani getting in. The other man helped by pulling the curtain back. Mr Terkmani got in. He demanded that Mr Phillips open the door for his accomplice. Mr Phillips did so, opening the back door. The other man came in. Then they both started punching Mr Phillips with their fists. Mr Phillips fell to the ground and they continued to assault him.

5. The result of the assault was that Mr Phillips ended up with a black eye, a bleeding nose and a tooth that went through his top lip. This left him with blurred vision and a sore jaw. The men kept looking for Anthony Halliwell. The other man produced a syringe. He demanded that Mr Phillips and Ms Wren remove their shirts but they refused. Mr Terkmani who was in another part of the house came back at that time and suggested that they leave. The other man threatened the two with the syringe but then left with Mr Terkmani. A neighbour called the police who arrived a short time afterwards.

6. Mr Terkmani got away but was detected to be the offender because he had left DNA on the brick. As I have already said, this must have been a shocking experience for Mr Phillips and Ms Wren.

7. The first thing I need to do is to determine whether this case should be dealt with with the standard non-parole period of five years. The Court of Criminal Appeal in Regina v Way (2004) 60 NSWLR 168 said that I need to ask and answer the following question: “Are there reasons for not imposing the standard non-parole period?” The Court went on to say that I answer that by considering two matters. One is the objective seriousness of the offence and the other is the circumstances of aggravation and of mitigation which are present and which are listed in s 21A of the Crimes (Sentencing Procedure) Act 1999.

8. First then I consider the objective seriousness of the offence. Mr Gibson who appeared for the prosecution argued that the offence fell within the middle of the range of objective seriousness; even, he argued, in the upper part of the middle of the range. He argued that based on the following aspects of the offence.

HIS HONOUR: I’ll just pause there from delivering my remarks on sentence, I just need to check Mr Modder, what was the aggravation relied upon? I just don’t have a note of it specifically.

MODDER: Assault occasioning actual bodily harm. I’m sorry your Honour. Just one minute.

HIS HONOUR: No that’s part of the offence is it not. I need to know what the circumstances of aggravation were that were relied upon by the Crown in the prosecution

MODDER: Yes just looking at the notes here your Honour the fact that the offence was committed in company, that the offender knew that there were persons inside the premises--

HIS HONOUR: I know there were several circumstances of aggravation, I’m just wondering which one the Crown relied on in the prosecution.

MODDER: Yes. The offender was armed with a knife, the co-offender with a syringe your Honour.

HIS HONOUR: Is that the one, the armed with an offensive weapon?

MODDER: Yeah, corporal violence--

HIS HONOUR: More than one, what was actually relied upon--

MODDER: But that’s within the assault occasioning actual bodily harm.

HIS HONOUR: What was relied upon before the jury as the circumstance of aggravation, that’s my question.

MODDER: Your Honour those that I’ve got here are just as I’ve read out from my friend’s paper basically as I wasn’t involved in the trial of course but the notes that I’ve got here--

HIS HONOUR: I’d forgotten. You weren’t instructing, were you in that trial, no.

MODDER: No, other ones yes but not this one.

HIS HONOUR: Yes.

MODDER: But the notes I’ve got here was offender in company, offender knew persons in premises, knife, co-offender had a syringe, corporal violence--

HIS HONOUR: Okay, all right.

MODDER: Threatened use of a weapon, a knife.

9. As will be apparent from the exchange which has just occurred I am not clear what the circumstance of aggravation was that was relied upon by the Crown before the jury but it could have been any one of a number of factors which Mr Gibson has pointed to. They include the following. The offender was in company. The offender knew that there were persons inside the house. The offender was armed with an offensive weapon. The offence was committed in the home of the victim. Those matters I take into account in assessing the objective seriousness of the offence. There are some additional matters which go to the objective seriousness of the offence which require a little more comment.

10. The first is that the co-offender produced a syringe. I do not take that into account as a separate offensive weapon being used in the offence. That is because I am not satisfied beyond reasonable doubt that Mr Terkmani knew that his co-offender had a syringe when they entered the house. Indeed it seems he was absent when it was produced. Nevertheless I do take it into account as part of the aggravating feature of being in company. One of the reasons why committing offences like this in company is aggravating is that an offender cannot always control what their co-offender may do. In this case the co-offender produced a syringe so, as I say, that is taken into account as part of the aggravating factor of the offence being committed in company. That aspect of the aggravation is modified a little by the fact that the offender at that point suggested that they both leave the house.

11. A second aggravating feature which requires a little more consideration is that the offence was planned. It was not spontaneous or opportunistic. However, it was clearly not well planned because Mr Halliwell was not at home. But nevertheless it was not a spontaneous or opportunistic enterprise.

12. I also take into account in assessing the objective seriousness of the offence the fact that the actual offence committed was an assault occasioning actual bodily harm carrying a maximum of five years imprisonment. That is the minimum period of imprisonment which must be attached to a serious indictable offence for something to be an offence under that section. As Mr Todd - who appeared for Mr Terkmani in the sentence proceedings - argued, there are far worse kinds of offences which may have been committed, for example, sexual assaults. I am inclined to accept Mr Gibson’s submission on that point. Were the offence committed inside the house much worse than it was, then the charge or rather the objective seriousness of the offence may well have been in the upper range.

13. A further factor I take into account is that the offence was committed over a relatively short period of time. It was reasonably short in scope.

14. Another factor which I take into account, which became apparent in the evidence in the trial, was that there was clearly some motive for the two offenders looking for Mr Halliwell. It was not a spontaneous or gratuitous act of violence accompanied by a theft, for example. There was a purpose in the offenders entering the house and my recollection is that that purpose may have been related to their opinion about the character or behaviour of Mr Halliwell.

15. I take into account that the brick being thrown through the window must have been a terrifying experience for the occupants.

16. With all those factors I need to determine where the case lies in the range of objective seriousness. My own impression when listening to the argument presented by Mr Gibson and Mr Todd was that this case clearly fell within the middle of the range of objective seriousness. However I have since consulted some judgments of the Court of Criminal Appeal on this offence. Those judgments lead me to what I respectfully regard as the surprising conclusion that this offence does not fall within the middle of the range of objective seriousness but falls below it.

17. One such decision was Regina v Joel Tory, Regina v Luke Tory [2006] NSWCCA 18. That was a case where two men broke into a house and assaulted the occupant with a golf club. They were under the impression that the man they assaulted had inappropriate or improper dealings with a young woman, indeed with the fourteen year old sister of one of the offenders. The whole incident took about two minutes. Adams J, with whom on this point Hunt AJA and Latham J agreed, concluded at [37] that in his Honour’s view it was “clear that the objective seriousness of the offences committed here is significantly less than the middle of the range of objective seriousness for offences of this kind.” His Honour took into account that the offenders were motivated by a genuine desire to protect their sister and that the infliction of bodily violence was spontaneous and unplanned. His Honour also took into account that the offence was a very brief duration.

18. In Mr Terkmani’s case the offence was similarly of fairly brief duration, although perhaps not as brief as two minutes. I expect the infliction of the bodily violence was spontaneous and unplanned in the sense that the men announced before they came in that they were looking for Anthony Halliwell. Although the motivation in this case was not as clear as it was in Tory’s case, there is some similarity in that the men were focused on finding a man whom they regarded as having a bad character.

19. In Regina v Millar [2005] NSWCCA 202 the Court of Criminal Appeal was dealing with another case where a man broke into a house and assaulted the occupant. The assault resulted in some haemorrhaging in the right eye and fractures around the right eye as well as the nasal bones. It required surgery. The court did not take exception to the finding of the sentencing judge that “despite the objective seriousness of the case, a combination of the mitigating factors takes this case outside the middle range of cases to which the standard non-parole period generally applies”. His Honour the sentencing judge went on to find that that case was “considerably below” that range.

20. Again in Regina v Price [2005] NSWCCA 285 the Court of Criminal Appeal was dealing with a case where a man broke into a house and assaulted the occupant with a wooden stick. Once again a feature of the case was that the offender thought that the victim had assaulted the offender’s father. The Court of Criminal Appeal did not disapprove of the sentencing judge’s finding that that offence fell “below the mid range, and quite a way below”.

21. But for those authorities I would have found that this offence fell within the middle of the range of objective seriousness. However because the offence was committed over a relatively short period of time, because the planning was limited and the violence spontaneous, I regard the case as falling just below the middle of the range of objective seriousness.

22. If I am wrong in this finding then in any event I would and do find that there are reasons in this case contained in s 21A of the Crimes (Sentencing Procedure) Act to depart from the standard non-parole period. Those reasons are contained in exhibit A which is the Pre-Sentence Report tendered in this case dated 23 October 2008.

23. One of the findings that I make involves accepting a submission by Mr Todd regarding Mr Terkmani’s age. Mr Terkmani was nineteen when he committed this offence. He is now twenty three. Mr Todd, in his submissions, argued that younger men make poor choices. He said that indiscretions become criminal activities. With age comes better judgment. In my opinion, this case leaves me with the impression that it was a very ill-considered attempt to confront Mr Halliwell whom, rightly or wrongly, the offenders regarded as requiring confrontation. That activity turned into a very serious crime when they refused to accept Mr Phillips’ assurances that Mr Halliwell was not there. Their entry into the house was a dangerous and ill-considered move. However I accept Mr Todd’s submission that that move probably stemmed from or had a lot to do with the offender’s age.

24. Another factor which I take into account, turning now to the Pre-Sentence Report, is the good family support which this offender receives. It is described in the report as considerable. In addition he is a qualified tradesman and undertook his education to obtain his trade at the same time as working. He enjoys a good employment history and is described in the Pre-Sentence Report as having “strong work and family ethics”. He is well regarded by his employer who regards him as having leadership potential and would consider providing him with employment upon his release. He has in the past been compliant with a community service order.

25. Those factors in my opinion lead me to conclude that he has good prospects of rehabilitation although that conclusion is a little guarded because of the fact that Mr Terkmani committed another assault last year which led to a conviction in the Gosford Local Court of assault occasioning actual bodily harm.

26. So I take into account under s 21A(3) Mr Terkmani’s age and his prospects of rehabilitation. They would provide me with reasons in this case to depart from the standard non-parole period.

27. However the offence is so serious that I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment and imprisonment full time is appropriate. The question is where I fix that sentence. I have had regard to the statistics which have been published by the Judicial Commission of New South Wales and provided to me as part of exhibit A. Over fifty per cent of sentences imposed in cases such of this are four years or less. Over fifty per cent of non-parole periods are of two years or less. Because Mr Terkmani did not plead guilty and, as he was entitled to do, defended the charge, it means that he does not attract the discount that a plea of guilty provides to other offenders who decide to plead guilty.

28. I regard an appropriate overall sentence in this case as four years imprisonment. Mr Todd submitted that there are special circumstances for finding that the balance of the term must not exceed one-third of the non-parole period for the sentence. He points to the offender’s youth and that it is his first time in custody and his prospects of rehabilitation. Mr Gibson does not dispute that submission. I find that there are special circumstances for varying that ratio. I have determined that the non-parole period should be two years. The sentence will date from when Mr Terkmani has been in custody, namely 27 August 2008.

29. I am going to sentence you now Mr Terkmani if you would stand up. I set a non-parole period for the sentence, that’s the minimum period for you to be kept in detention, of two years from 27 August 2008 until 26 August 2010. The balance of the term will be two years from 27 August 2010 to 26 August 2012. Have a seat.

30 .Now because the sentence is over three years I make no orders as to parole.

HIS HONOUR: Now Mr Modder, Mr Jabakhangi are there any orders, yes first check that my calculations are correct.

MODDER: No further orders from the Crown’s point of view your Honour,

JABAKHANGI: No further orders from the defence point of view.

HIS HONOUR: No further orders. All right. Now Mr Terkmani I’ve got to explain this to you. You’ve got a sentence of four years. It dates from when you were convicted and stayed in custody, 27 August 2008. So your sentence finishes on 26 August 2012. I’ve set a non-parole period of two years. That’s the amount of time you have to spend in gaol. So you won’t be released before 26 August 2010. Whether you’re released or not doesn’t depend upon me, it depends on the Parole Authority when you’re in prison. So when that date is approaching, that is 26 August 2010, they will start thinking about your case and they will determine whether you should be released on parole on that date or not. So the earliest date that you can be considered for parole, eligible, is 26 August 2010. Do you understand that?

OFFENDER: Yeah.

HIS HONOUR: You do.

OFFENDER Yes.

HIS HONOUR: Okay. Is there anything else gentlemen?

MODDER: No your Honour.

JABAKHANGI: No your Honour.

HIS HONOUR: No, all right thank you, Mr Terkmani can be taken down.

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