R v Cako
[2000] VSCA 147
•18 August 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No.295 of 1999
| THE QUEEN |
| v |
| FRED FAIK CAKO |
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JUDGES: | PHILLIPS, CHARLES and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 20 and 21 July 2000 | |
DATE OF JUDGMENT: | 18 August 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 147 | |
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Criminal law – Sentencing – Armed robbery – Numerous prior convictions – Evidence not called at sentence – Co-operation with prosecuting authorities – Protective custody – Guilty pleas – Remorse – Rehabilitation – Sentence of 12 years, and non-parole period of 10 years manifestly excessive.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. C.J. Ryan | P.C. Wood, Solicitor for Public Prosecutions |
| For the Appellant | Mr. P.F. Tehan, Q.C. | Pryles & Defteros |
PHILLIPS, J. A.:
I agree with Charles, J.A.
CHARLES, J. A.:
On 8 November 1999 the appellant pleaded guilty in the County Court at Melbourne to a presentment containing seven counts, theft of a motor car (count 1), attempted armed robbery (count 2) and armed robbery (count 3), all on 30 May 1997; armed robbery (count 4) and two counts of intentionally causing serious injury (counts 5 and 6), on 10 June 1997; and theft on 6 August 1997 (count 7). A plea was conducted on 8 November, and the applicant admitted 52 previous convictions from 19 court appearances between 30 April 1973 and 18 June 1996. They include convictions for various kinds of assault, theft, three convictions for burglary, and nine convictions for armed robbery. During the plea evidence was given by Terence Frederick Hopgood and Jeannie Cako on behalf of the appellant.
On 16 November 1999 the judge sentenced the appellant to be imprisoned as follows, on count 1 for six months, on count 2 for six years, on each of counts 3 and 4 for nine years, on each of counts 5 and 6 for three years, and on count 7 for five years. Taking the base sentence as count 3, the judge made orders for cumulation of one year of each of the sentences imposed on count 2, count 4 and count 7.[1] The total effective sentence was therefore 12 years' imprisonment and the judge fixed a non-parole period of 10 years. The appellant was declared a serious violent offender pursuant to s.6F of the Sentencing Act 1991.
[1]In respect of count 7 the indorsement on the presentment and the quadruplicate both contain an error.
The appellant sought leave to appeal against sentence upon grounds that the sentence is manifestly excessive, that having regard to his age and plea of guilty the sentence is crushing, that the sentence does not show parity with the sentences imposed on the appellant's co-accused, and that the judge erred in failing to take proper account of the appellant's efforts to rehabilitate himself. On 14 March 2000 application was made to amend the grounds of appeal to include the following specific grounds –
"6.That the learned sentencing judge erred in failing to place any or any sufficient weight upon the applicant's co-operation with law enforcement authorities; alternatively, there is material which the Court of Appeal should accept as relevant and as throwing a different light upon this matter.
7.The learned sentencing judge erred in failing to place any or any sufficient weight upon the fact that the applicant would spend his sentence in protective custody; alternatively, there is material which the Court of Appeal should accept as relevant and as throwing a different light upon this matter."
On 16 March 2000, the appellant was granted leave to appeal under s.582 of the Crimes Act 1958 and on 24 March he was granted leave to amend to add the two grounds just quoted.
The appellant's co-accused were Ahmet Pak, Dimitrios Damas, and Damien Scott Taylor. Damas was the operator of a car yard in Brunswick.
On 30 May 1997, the appellant, together with Pak and Damas drove to the car-park of a Coles shopping centre in Coburg in a vehicle from Damas's car yard. Damas had with him an old Ford car key which could be used to start most examples of certain early Ford motor cars. He used that key to enter such a vehicle at the Coles car-park and they drove it back to the car yard (count 1).
At midday, the appellant, Pak and Damas went to a costume shop in Sydney Road where they purchased false beards, false moustaches and Groucho glasses. Pak then armed himself with a long-bladed knife and the appellant took an imitation pistol. They disguised themselves with the false beards, moustaches and glasses and heavy clothing. Damas then drove them to the premises of the Bank of Melbourne in Sydney Road, Brunswick, and parked the stolen car in a side-street. At about 4.20 p.m. the appellant and Pak ran through the front door of the bank carrying their weapons. They shouted out "This is a robbery" and demanded money. A pillow case was thrown on to the counter for the bank staff to fill with banknotes. As one member of staff moved towards the security button, the appellant called out "Don't you fucking dare". However another member of staff did press the button, which immediately activated the security camera and the security screens, sealing off the chamber area of the bank from the public. The appellant and Pak then ran out of the bank and back to the car (count 2).
Damas then drove the appellant and Pak to a nearby location where they dumped the stolen car and stepped into a second vehicle which Damas had obtained from his car yard. The three then returned to Damas's car yard and the appellant told the others he knew of an easier place to rob, the TAB shop in Belair Street, Glenroy. The three then drove to that location in a further vehicle taken from the car yard. Upon arrival at the TAB premises, Damas parked the car in the car park. At approximately 4.55 p.m. the appellant and Pak entered the premises wearing the same disguises and clothing as they had previously worn in the Bank of Melbourne. They ordered customers to lie on the ground, went behind the service counter and emptied the drawers of cash, taking $2,724, all the money they could find. They then ran out of the TAB and into the car park where Damas was waiting for them in the car (count 3). They returned to Damas's car yard where they split up the money and arranged to dispose of their clothing and disguises.
On the morning of 10 June 1997, Peter Schmidt and his son-in-law, Keith Ingram were working at the Moreland Authorised Newsagency and Post Office in Sydney Road, Coburg. They had commenced work at 4.15 a.m. They opened the shop at 7 a.m. after completing their newspaper deliveries. The business is located opposite Damas's car yard and the appellant had been there while he was working at the car yard. The appellant had devised a plan to rob that business and, since he was known there, he asked Pak to do the job. Pak then recruited Taylor to assist him.
In furtherance of the appellant's plan, Pak and Taylor went to the appellant's flat at West Brunswick early on 10 June. The appellant then supplied Pak and Taylor with overalls, balaclavas and an imitation firearm, which was carried by Taylor, and a bowie-style knife which was carried by Pak. The three of them left the appellant's flat in his car, a white Holden Commodore, and drove to an alley behind Damas's car yard. The appellant left the car and walked to the newsagency, where he purchased a newspaper and checked that everything was as expected. He returned to the car and told Pak and Taylor that the robbery could proceed. At 7.50 a.m. Pak and Taylor walked across the road to the newsagency and walked in through the front door. Pak locked the door behind him to prevent any other persons entering and shouted that it was a robbery. They approached Schmidt and Ingram who were both behind the counter and Pak demanded money from the safe. Without warning Pak stabbed Ingram on the left arm and Schmidt in the left calf. Schmidt and Ingram were both forced to walk to the rear room of the shop where the safe was located, on the way being repeatedly stabbed and slashed at by Pak. Once in the back room, Pak hit Schmidt across the back of the head and caused him to fall to the ground, and then straddled him and demanded that Ingram open the safe. He held the knife close to Schmidt's ear and threatened to cut it off if the safe was not opened. He ran his knife up the rear of Schmidt's leg, opening the leg almost to the bone. Both victims were tied up with telephone cords from telephones which had been pulled from the walls. Pak demanded the keys to the safe and they opened a safe in the room from which they removed $4,500 in cash. Taylor placed this in an Australia Post bag. Pak and Taylor then ran out the front door and back to the waiting car and the appellant then drove them back to his home, where they split the money, leaving behind the clothing and weapons for the appellant to dispose of. Taylor and Pak then drove to Echuca. Schmidt and Ingram eventually managed to untie themselves and contact the ambulance and police services. Both of them suffered extremely serious stab wounds to their lower bodies and each had lost a considerable amount of blood. These events gave rise to counts 4, 5 and 6.
Count 7 related to the theft by the appellant, Pak and Taylor on 6 August 1997 of a bag contained $10,200 in cash from Wayne McInnes, the proprietor of the West Brunswick Newsagency and Tattslotto agency in Melville Road, Brunswick West. McInnes's duties included taking the day's cash takings to the nearby Commonwealth Bank every banking day. The appellant had observed this daily routine and discussed it with Pak. On the Friday prior to the day of the offence, Pak and Taylor came to West Brunswick and watched McInnes take his takings to the bank. It was decided that they would commit the theft the following Friday. That day the appellant and Pak again borrowed a car from Damas. The appellant drove Pak and Taylor to the vicinity of McInnes's business and dropped them off, waiting a short distance away. Taylor snatched a bag of cash from McInnes, with Pak standing ready to assist him in case a passer-by intervened. They ran off with the money and threw it through the back window of the car which the appellant then drove away, followed by a passing motorist who had witnessed the theft. The appellant eluded the following car and Pak and Taylor made their own back to the appellant's flat where they divided up the money and left. The car was abandoned and later reported as stolen from the car yard where Damas worked.
On 7 April 1999 Pak, Damas and Taylor pleaded guilty to various charges on the same presentment as that on which the appellant had been presented, before Judge McInerney, who is not the judge who later sentenced the appellant. During the plea, Pak admitted four previous convictions including convictions on 8 September 1993 for intentionally causing serious injury and recklessly causing serious injury on each of which he had been sentenced to six years' imprisonment, a non-parole period of four years being fixed. Taylor admitted four previous convictions and Damas 14 previous convictions. Pak was sentenced to be imprisoned on counts 2 and 6 for four years in each case, on counts 3 and 4 for five years in each case, and on counts 5 and 7 for three years in each case. Orders for cumulation resulted in a total effective sentence of eight years' imprisonment and the judge fixed a non-parole period of six years. Damas was sentenced on counts 1, 2 and 3 to a total effective sentence of 15 months' imprisonment, with a non-parole period of eight months, and Taylor was sentenced on counts 4, 5 and 6 to a total effective sentence of five years' imprisonment, with a non-parole period of two years.
The case made by Mr Tehan in this Court for the appellant was that, although the appellant had a very bad record and had played the leading role in the planning and organization of these serious offences, his position had changed dramatically since the offences had been committed. In the first place he had co-operated fully with the police during a record of interview, making a full admission of his part in the offences. But more significantly the appellant had given substantial assistance in the course of his answers to police questions. Having for the first time (so it was said) discovered the extent of the injuries suffered by the victims of the armed robbery of the authorised newsagency on 10 June 1997, the appellant's co-operation had extended to naming his co-offenders, giving a description of the role each of them had played, and providing other assistance requested by the police with a view to apprehending, and establishing a case against, these co-offenders. This information had been provided both during the record of interview and during discussions with a Detective Sergeant Linehan prior to the record of interview commencing. The information provided by the appellant was, so it was said, instrumental in the identification, arrest and prosecution of Pak, Taylor, Damas and a fourth man, Erkan Ustandag. Mr Tehan submitted that the assistance to the prosecuting authorities was of a high order and should have led to a significant sentencing discount. Furthermore the assistance given by the appellant had led to death threats being made against him and his family. The appellant was now in protective custody in consequence and it was likely, it was said by Mr Tehan, that he would be forced to spend the whole of his period of actual imprisonment in protection.
During the plea below evidence had also been given by the appellant's wife that she had noticed a big change in the appellant since these offences and in particular since he had returned from a period of three months in Odyssey House. They had a son 20 months old in November 1999, and for the first time the appellant, she said, was really showing responsibility as a family man and a father. More significant was the evidence of Terence Hopgood, a forensic drug and alcohol counsellor, who had been dealing with the appellant for over a year. The appellant had been addicted to heroin, which had been given as a reason in the record of interview for his participation in the armed robberies. Hopgood testified that the appellant had been very responsive to treatment and appeared very committed to changing. Notwithstanding what Hopgood said was the appellant's atrocious record, he said that the appellant had, on the testing that had been carried out, shown that he had gone for over a year whilst out on bail with no re-offending and no drug use. As Hopgood put it "For the heroin user ... to be able to go a couple of days without the drug choices is a very good effort, to go for nearly a year is absolutely huge."
In his reasons for sentencing the appellant the judge set out in detail the facts of the offences which have already been described. When his Honour came to the matters that had been raised in the plea on behalf of the appellant, reference was made to the appellant's prior convictions and in particular his nine convictions for armed robbery, the most recent of which were four convictions on 4 November 1988 on each of which the appellant had been sentenced to nine years' imprisonment, leading to a total effective sentence of twelve-and-a-half years, with a non-parole period of nine-and-a-half years being then fixed. Reference was then made to matters personal to the appellant including his drug habit, his recent marriage and the birth of his child and his failed attempts to avoid his heroin habit. His Honour found that the appellant had not intended actual violence to be committed during the course of these offences, a fact which had been accepted by the prosecution during the plea. His Honour then continued –
"[Counsel] also sought to rely upon the evidence of Terence Patrick Hopgood, a forensic drug and alcohol counsellor who has had significant contact with Cako over a period of 13 months, Hopgood stated that Cako appeared to have had a change of attitude since marriage and that his chances of rehabilitation were good; that he had been drug-clear for 12 months, that a crushing sentence would be detrimental to his chances of rehabilitation, and that he was assisting younger prisoners in the prison operated scheme called Listeners Program, and that he was in protected custody.
That he had spent a productive three months as an in-patient at Odyssey House. That he was now showing maturity and responsibility, having enjoyed actually working for a living and spending time with his son."
His Honour also noted that the appellant had pleaded guilty.
The judge's reasons make no mention of the assistance given by the appellant to the police, or the fact that it was this assistance which had led to his being placed in protective custody. The reason for this is, no doubt, that in the course of a plea which was in the circumstances surprisingly short, no reference was made by the appellant's counsel to these matters other than to say that the appellant had co-operated with the police and pleaded guilty and that he was now in protective custody because of threats made by other prisoners.
In these circumstances, Mr Tehan argued that because of an inadequately presented plea in mitigation, the judge had passed sentence on the applicant without a proper appreciation of the nature, extent or usefulness of the assistance provided by the appellant to law enforcement authorities. Mr Tehan invited the Court to receive evidence in the form of five affidavits, by the appellant, his counsel at the plea, Detective Sergeant Linehan, a prison supervisor at the Melbourne Assessment Centre, and a solicitor employed by the firm acting on the appellant's behalf, testifying to these various matters. Mr Tehan's submission was that, although this evidence was not "fresh", since the appellant's legal advisers knew of the existence of all this material at the time of sentencing, it was the duty of the Court of Appeal to admit the evidence where that course was necessary to avoid a miscarriage of justice: The Queen v. McIntee[2]; R. v. Abbott[3]; R. v. Knights[4]; R. v. Babic[5].
[2](1985) 38 S.A.S.R. 432 at 435.
[3](1985) 17 A.Crim.R. 355 at 356.
[4](1993) 70 A.Crim.R. 105 at 110.
[5][1998] 2 V.R. 79 at 80.
Mr Ryan, who appeared in this Court for the Crown, submitted that none of this material should be received. None of the evidence was fresh and it disclosed, he argued, no more than was evident, or could reasonably have been inferred, from a careful reading of the depositional material and submissions made by counsel. Accordingly, there was no need for this Court to admit the affidavits to provide evidence of the various matters referred to by Mr Tehan.
The depositional material which was before the sentencing judge was voluminous. It was no doubt the judge's obligation to make himself familiar with this evidence, but it would, with respect, have been remarkable if, without the assistance of submissions directing his attention to particular parts of it, his Honour had gained a proper understanding of the matters on which Mr Tehan now seeks to rely. A careful examination of the depositional material, however, undertaken with the assistance of the detailed submissions of both counsel before us, shows that the appellant did indeed give assistance which was very significant, both in providing details of his own participation in the offences, and in relation to the co-offenders. That assistance was plainly critical to the prosecution of Pak, who denied any involvement in the offences during a record of interview until confronted with the signed statement of the appellant. Damas and Taylor both signed confessional statements, made after the appellant had given his statement naming them to the prosecution. The appellant's co-operation was described during the committal by Detective Sergeant Linehan as uncharacteristic and as evidencing remorse. Mr Ryan conceded that the full extent of the appellant's co-operation could not have been distilled from the depositions, but he submitted that there was enough material before the judge, once properly understood, for it to have been shown that the appellant's co-operation had been fulsome, that it had led to the successful prosecution and conviction of Pak and probably others, and that it was in consequence of this assistance that the appellant is now required to serve his sentence in protective custody.
The sentencing problem presented by this case was, I think, a very difficult one. Putting to one side the assistance that had been given to prosecuting authorities by the appellant, the sentences imposed by the judge were, I think, well within range, as Mr Ryan submitted. The offending period occurred over some ten weeks, the offences committed were brazen and attended by great brutality on the part at least of Pak, and the judge was faced with sentencing, in the appellant, a "career" criminal with a considerable record for the commission of similar very serious offences.
But it is well-established that giving of assistance to prosecuting authorities is to be weighed in favour of leniency: see R. v. Cartwright[6]; Rostom[7]; R. v. Golding[8], and R. v. Hayes[9]. The fact that a prisoner must serve a sentence in protective custody increases the burden of the sentence and is also to be taken into account; Rostom[10]; R. v. Kasulaitis[11]; R. v. Lowe[12]; R. v. Davies and Gorman[13]. Here the assistance given was significant and it clearly justified a substantial discount in sentencing. Furthermore the fact that such assistance had been given added considerable weight to the evidence actually given on the plea to the effect that the appellant had shown remorse, had beaten his addiction to heroin, and had gone some distance down the path towards rehabilitation.
[6](1989) 17 N.S.W.L.R. 243 at 252-254.
[7][1996] 2 V.R. at 103-104.
[8](1980) 24 S.A.S.R. 161 per Wells, J. at 172-173.
[9][1991] W.A.R. 252 per Burt, C.J. at 254.
[10][1996] 2V.R. at 101-103.
[11][1998] 4 V.R. 224 at 232.
[12](1977) 66 Cr.App.R. 122 at 126.
[13](1978) 68 Cr.App.R. 311 at 322.
In R. v. Gallagher[14], Hunt, J. said that the absence of any reference to at least the fact that a discount had been allowed for the prisoner's assistance to the authorities will in most cases inevitably lead to the conclusion on appeal that no such discount has been allowed. In the present case the judge made no mention of the assistance the appellant had given the authorities. The likelihood that his Honour did not take the matter into consideration in imposing sentence is increased by the fact that the matter was not mentioned at all during the plea.
[14](1991) 23 N.S.W.L.R. 220 at 234.
In all these circumstances I would reject the affidavit material tendered on the appellant's behalf. I accept Mr Ryan's submission that it is not necessary to receive this evidence to avoid a miscarriage of justice. At the same time, however, I would conclude for the reasons already given that the judge failed to place any weight on the appellant's co-operation with law enforcement authorities, and the fact that the appellant would in consequence of giving that co-operation spend his sentence in protective custody, and accordingly that grounds 6 and 7 have been made good.
The judge found that the appellant's involvement in the offending was intense, that he was the planner and organiser, the brains behind the events, the provider of the equipment and the selector of sites and victims. Having regard to each of these matters and the appellant's record, it was to be expected that the appellant would receive longer sentences for counts 3, 4 and 7 than did Pak. But, once regard is had to the assistance the appellant gave the authorities and its consequences, the sentences imposed on counts 3 and 4 are in my view manifestly excessive and I would therefore also uphold ground 1. In upholding grounds 1, 6 and 7, I differ from the sentencing judge in large part in reliance upon matters that were not argued before his Honour during the plea.
I would therefore allow the appeal and quash the sentences imposed on the appellant. In lieu thereof I would re-sentence the appellant as follows: to be imprisoned on count 1 for six months, on count 2 for four years, on counts 3 and 4 for six years in each case, on counts 5 and 6 for three years in each case, and on count 7 for four years. Taking count 3 as the base sentence, I would order that one year of the sentence imposed on count 2, one year of the sentence imposed on count 4, and one year of the sentence imposed on count 7 be made cumulative on each other and on the sentence imposed on count 3. Although the appellant was properly declared a serious violent offender, I think that save as already described the sentences should be served concurrently. The total effective sentence would therefore be nine years' imprisonment, and in view of the appellant's prospects of rehabilitation I would fix a non-parole period of six years.
BUCHANAN, J. A.:
I agree that the appeal should be allowed for the reasons stated by Charles, J.A. and that the appellant should be re-sentenced as his Honour proposes.
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