R v Selcuk
[2007] VSCA 143
•29 June 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 404 of 2006
| THE QUEEN |
| v. |
| ASIM SELCUK |
---
JUDGES: | MAXWELL P, ASHLEY AND NEAVE JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 May 2007 | |
DATE OF JUDGMENT: | 29 June 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 143 | |
---
Sentencing – Intentionally causing serious injury – Vicious unprovoked attack with a baseball bat on the appellant's 61 year old uncle – Appellant aided and abetted his brother who was the principal offender – No pre-planning or physical involvement by the appellant – Appellant sentenced to three years’ imprisonment with a non-parole period of one year – Whether trial judge erred in characterisation of the appellant’s role – Whether sentence manifestly excessive given the appellant’s role – Admissibility and effect of fresh evidence of terminal illness and death of father – Appeal dismissed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T Gyorffy | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Appellant | Mr D A Dann | Robert Stary & Associates |
MAXWELL P:
I would dismiss the appeal. Subject to what follows, I would do so for the reasons given by Neave JA, whose draft judgment I have had the advantage of reading.
As her Honour explains, ground 1 concerned the sentencing Judge’s reference to the appellant having driven his brother to the site of the attack. There was debate on the appeal as to whether this reference betrayed an erroneous view of the conduct for which the appellant was being sentenced. Whatever construction might be placed on the particular words used, the question of substance is whether the Judge misapprehended the nature and extent of the appellant’s offending. Having read the full transcript of the argument on the plea, and having regard to the full reasons for sentence, I see no basis for the contention that her Honour made any such error.
ASHLEY JA:
I have had the advantage of reading in draft the reasons for judgment of Neave JA. Like her Honour, but for different reasons, I would dismiss the appeal.
On the footing that, by the Crown’s concession, the appellant fell to be sentenced as an aider and abettor, I agree with Neave JA that the jury verdict reflected its satisfaction that the appellant either encouraged the attack upon his uncle, or assented to or concurred in it – doing so by getting out of the car and standing by whilst the victim was subjected to a prolonged attack, and by holding himself in readiness to drive his brother away when the attack was over.
It is in that context that regard must be had to this observation by the learned sentencing judge:
“. . . you did nothing to try to stop the attack or assist the victim, you assisted your brother by driving him to and from the site and you lied to the police about your involvement.”
Unlike Neave JA, I cannot accept that the reference to the appellant driving the brother to the scene of the attack was no more than a recitation of what actually
happened. Rather, in my opinion it shows that the learned sentencing judge treated that circumstance, wrongly, as part of the offence.
The import of the judge’s references to the appellant driving his brother from the scene, and lying to the police about his involvement, is more problematic. If I am correct in treating the reference to the appellant driving his brother to the scene of the attack as more than descriptive, it seems improbable that the reference to those events was intended to be merely descriptive. I should say that it was not. The likelihood is, I think, that the driving away was treated by the judge as being part of the offence, and the lying as demonstrating, at least, a then lack of remorse. But it is at least doubtful that the first of those circumstances was susceptible of such a characterization.
In the event, I consider, with respect, that the judge did err in sentencing the appellant, in that she treated one, and probably two, circumstances as being part of the offence when they were not.
On the other hand, I am not persuaded that a different sentence should have been passed. The appellant aided and abetted the commission of a very serious assault, and in my opinion such conduct merited the sentence which was imposed. But the matter did not end there. In one or more ways, the appellant’s conduct in driving his brother away from the scene of the attack was relevant to sentence. Consistently with what Brooking JA said in DPP v England,[1] that conduct was so closely connected with the offence as to constitute a circumstance of aggravation; and, in my opinion, it was able to be so considered. But even if that were not so, such conduct - and the appellant’s lies to the police - were relevant as contraindicating remorse at the time.[2]
[1][1992] 2 VR 258, 263-264.
[2]In my view, the telling of the lies was too remote from the commission of the offence to constitute an aggravating circumstance.
Beyond those matters, Neave JA has carefully examined, albeit in the context of a complaint that sentence imposed was manifestly excessive, the various factors
relied upon by the appellant in mitigation of sentence. In my opinion her Honour’s analysis shows not only that the sentence imposed was not manifestly excessive, but that it was a proper sentence in all the circumstances. I add, for the sake of completeness, that the death of the appellant’s father in early May 2007 – relied upon as fresh evidence enlivening the re-opening of the sentencing discretion – has not caused me to conclude differently.
NEAVE JA:
The appellant, Mr Asim Selcuk, aged 23 at the time of the offence, was convicted by a jury of intentionally causing serious injury for his role in a serious assault on his uncle, Mr Ali Duran. He was acquitted of a second charge of affray, arising out of the same incident. On 7 December 2006, the appellant was sentenced by a judge of this court to three years’ imprisonment, with a non-parole period of one year. Mr Altaman Selcuk, the appellant’s older brother, played the leading role in the attack. He pleaded guilty to both affray and intentionally causing serious injury and was sentenced to a total effective sentence of six years and six months. Mr Asim Selcuk now appeals against the sentence.
Background
The circumstances giving rise to the offence were as follows. In 1999, Altaman Selcuk married Sezgin Duran, the appellant’s cousin and the daughter of Mr Ali Duran. In January 2005, Sezgin left her husband and moved back to her parents’ home. Mr Altaman Selcuk was angry about the separation.
On the afternoon of Saturday 19 February 2005, Altaman telephoned the appellant and asked him to come around to his home in Brunswick, because he had drunk too much to drive. Around 6.30 pm the appellant drove his brother to a Turkish café in Sydney Road which Mr Duran visited regularly. The appellant double parked, waited by the car and kept the motor running as Altaman entered the café to search for his uncle. The evidence of the witnesses in the café was that Altaman had carried a baseball bat, asked about “Sydney Ali” and made comments in Turkish such as “I am going to rip him apart” and “I am going to fuck him”. The learned sentencing judge found that it was not clear on the evidence whether the appellant knew that his brother had a baseball bat with him at this time.
When Altaman could not find his uncle in the café he got back into the car. The appellant then drove a short distance down Sydney Road until they saw Mr Duran waiting at a tram stop near the intersection of Sydney Road and Edwards/Reynard Street, Coburg. On seeing his uncle, the appellant stopped the car and Altaman got out and attacked Mr Duran with the baseball bat. The first blow fractured Mr Duran’s right index finger and knocked him to the ground. Altaman continued his attack, abusing his uncle and hitting him with the baseball bat with extreme force approximately 15 times as he was curled in a foetal position on the ground. At some stage during the attack Asim got out and stood nearby. There were a number of witnesses to the attack, who gave differing accounts about whether Asim physically participated in assaulting his uncle. After the attack, the appellant and his brother got back in the car and the appellant drove off at high speed.
At the time of the attack the victim was 61 years old. He was in poor health, was partially paralysed as a result of several strokes, used a walking stick and had been in and out of hospitals and nursing homes for the past two or three years. When the appellant and his brother fled the scene Mr Duran was bleeding heavily. Bystanders tried to help him and he was taken to hospital by ambulance. As a result of the attack, the victim suffered a number of serious injuries including a 15 cm laceration to his head, a cerebral contusion, several fractures and extreme bruising to much of his body, head and face.
A few days after the attack, on 24 February 2005, Mr Duran died. Because of his past health problems it was not possible to determine whether the attack contributed to his death.[3]
[3]Ali Duran had a past history of cerebrovascular disease (multiple strokes and left carotid endarterectomy in 2003), hypertension, chronic obstructive airways disease, ischaemic heart disease, hyperchloesterolaemia, depression, obesity, and poor compliance with medication. A post-mortem conducted by Dr Noel Woodford on 24 February 2005 revealed the cause of death to be acute cerebral infarction and cerebrovascular disease. The mechanism of death was the swelling of the brain as a consequence of the infarct resulting in internal herniation.
The role of the appellant in the attack
At the trial witnesses gave different accounts of the role which the appellant played in the attack. Before considering the first and second grounds of appeal I describe the findings which provided the basis for sentencing the appellant.
First, her Honour made findings based on the appellant’s acquittal on the count of affray and his conviction on the count of intentionally causing serious injury. She said that given the way the Crown case was put, the appellant’s acquittal of affray meant that “the jury was satisfied beyond reasonable doubt that [he] did not physically attack Mr Duran in any way.”[4]
[4]I take it that by this her Honour meant that the jury was not satisfied beyond reasonable doubt that the appellant did physically attack Mr Duran.
Secondly, her Honour stated:
“There is no dispute that [the appellant] got out of the car at some stage during the attack and stood near [his] brother, whilst he was attacking Mr Duran. In returning a verdict of intentionally causing serious injury, the jury must have rejected the suggestion that [he] was trying to break up the fight by calling out to [his] brother to stop hitting Mr Duran.”
Thirdly, her Honour explained that in relation to the offence of intentionally causing serious injury the Crown case was put on two different bases:
“that [the appellant] acted in concert with Altaman in committing the offence, or, alternatively, that [the appellant] aided and abetted him in committing the offence. At [the] plea the Crown conceded that because it is unknown on which of those two bases the jury convicted [the appellant] I should sentence [him] on the basis that [he] had lesser involvement, namely, that [he] aided and abetted [his] brother.”
Fourthly, as noted above, her Honour said that it was not clear whether the appellant knew that Altaman had a baseball bat on him when he got out of the car driven by the appellant and went into the café.
Finally, her Honour said that the appellant helped his brother flee the scene of the attack and lied to the police. When interviewed, he falsely alleged that he and his brother went to the scene unarmed and that Altaman had obtained a club lock to use as a weapon only after Mr Duran had produced a knife.
Grounds 1 and 2
The first ground of appeal alleges that the learned sentencing judge erred in sentencing the appellant on the basis that “part of his role in the offending involved driving the co-accused to the scene of the crime.” This ground of appeal relates to her Honour’s statement that the appellant “assisted [his] brother by driving him to and from the scene.”
The second ground of appeal is closely related to the first. It alleges that her Honour erred by “failing to have proper regard to the limited nature of the appellant’s role.” Both these grounds raise issues as to the basis on which her Honour sentenced the applicant. It is therefore appropriate to discuss them together.
In relation to the first ground of appeal counsel for the appellant contended that the reference to the appellant driving his brother “to” the scene of the assault showed that her Honour must have sentenced the appellant on the basis that his involvement as a principal in the second degree began at the time the brothers left the café. He argued that this was inconsistent with the Crown concession that the brothers were not acting in concert in the commission of the offence and with her Honour’s earlier finding that the applicant was not involved in any “pre-planning of the offence.” Counsel submitted that the basis on which the appellant was convicted was that he had stood by at the tram stop watching his brother beat Mr Duran. Her Honour could not treat the offence as including his driving his brother to the tram stop, unless she was satisfied beyond reasonable doubt that the appellant had done so to aid and abet Altaman in assaulting their uncle. She had made no such finding.
In relation to the second ground, counsel for the appellant submitted that the appellant should have been sentenced on the basis that he was accidentally caught up in an offence planned and committed by his brother, and had panicked and run away. Counsel eventually conceded that this submission was, in substance, a complaint of manifest excess. However, as I discuss below, it also raises an issue about the nature of the conduct which provided the basis for the appellant’s conviction.
Was there a specific sentencing error?
As I have said, the Crown conceded that the appellant must be sentenced on the basis that he aided and abetted the attack on Mr Duran, rather than on the basis that he acted in concert with Altaman.
For the past thirty years juries have received directions on aiding and abetting based on the three situations described by Smith J in Re Lowery and King:
“Aiding and abetting in this connexion means doing one or other of these three things while aware that the crime is being committed: first, intentionally helping the principal in the first degree to commit the crime, or, secondly, intentionally encouraging him by words or by your presence and behaviour to commit it, or, thirdly, intentionally conveying to him by words or by your presence and behaviour that you are assenting to and concurring in his commission of the crime. A person present at the scene of the crime and so aiding and abetting a person to commit a crime is in law a principal in the second degree and is guilty in law of the crime committed by the hand of the principal of the first degree.” [5]
[5][1972] VR 560, 562.
In Re Makin Ormiston J said that Smith J’s reference to “concurring” in the commission of a crime:
“…connotes only a unilateral agreement with what the principal offender is doing albeit that the direction requires that it should be ‘intentionally conveyed’ to the perpetrator by words or conduct. It does not seem to require the genuine consensus required for concert or a joint criminal enterprise but merely the direct conveying of agreement such as would intimate that the aider and abettor supported what was being done and would be willing to provide some help if necessary. There seems to be no need for proof of the reaction of the main perpetrator.”[6]
[6]R v Makin (2004) 8 VR 262, 267. See also R v Lam (2005) A Crim R 448, [63]–[80].
Passive presence at the scene of a crime does not normally amount to aiding and abetting the commission of the offence.[7] It follows that the jury verdict must reflect a finding beyond reasonable doubt that the accused aided and abetted his brother, either by encouraging the attack on his uncle or by assenting to or concurring in it. He did so by getting out of the car, standing by while Mr Duran was subjected to a prolonged attack (so making it less likely that others would go to Mr Duran’s assistance) and by holding himself in readiness to drive his brother away when the attack was over.
[7]Re Coney (1882) 8 QBD 534, 557-558; R v Russell [1933] VLR 59, 67; Re Makin (2004) 8 VR 262, 266 (Ormiston JA).
In her sentencing remarks her Honour said that:
“The attack on Mr Duran involved a serious example of the offence of causing serious injury. I accept that your role in it was significantly less than your brother’s and that it involved no pre-planning on your part. Nevertheless you did nothing to try to stop the attack or assist the victim, you assisted your brother by driving him to and from the scene and you lied to the police about your involvement.”[8]
[8]DPP v Asim Selcuk [2006] VSC 465, [5].
It was contended that the reference to the appellant driving his brother “to” the scene indicated that her Honour sentenced the appellant on the basis that when he drove away from the café he was aware of, or assented to, his brother’s plan to assault their uncle. For the reasons discussed above, it would have been a sentencing error for her Honour to treat the conduct occurring before the appellant got out of the car at the scene of the attack as constituting part of the offence of aiding and abetting the assault on Mr Duran.
However, in my opinion, she did not make this error. The passage relied upon by counsel for the appellant seems to me to be simply a factual statement that the appellant drove his brother from the café to the place where the attack occurred. It is clear that her Honour gave careful consideration to the role which the appellant played in the offence. She found that the appellant was not involved in the planning of the offence, that he did not know that his brother had a baseball bat with him when he went to the café, that he was not physically involved in the attack and that he had stood by at the tram stop doing nothing to stop the attack or assist the victim. This was the basis on which he was convicted. In the light of these findings, I would regard the reference to the appellant driving his brother “to” the scene as no more than a description of what actually occurred.
Her Honour’s references to the appellant driving his brother “from the scene” and lying to the police might also have been regarded as indicating that she treated this conduct as part of the offence for which the appellant was convicted. As the applicant was not presented under s 325 of the Crimes Act1958 for assisting his brother after he committed the offence, the offence for which the appellant was sentenced does not include this behaviour. This matter was not argued on appeal and the appellant’s supplementary submissions[9] conceded that “[t]he jury and the Sentencing Judge were obviously entitled to look at evidence of the surrounding circumstances – including the driving of the brother away from the scene”. In my view this concession is clearly correct. Although her Honour’s reasons do not clearly explain her reason for taking these matters into account, she was entitled to treat them as factors aggravating the appellant’s culpability.
[9]During oral argument the parties were asked to file supplementary submissions on the basis for liability of an aider and abettor, in particular on passive assistance.
In DPP v England[10] this court considered the extent to which the circumstances in which the offence was committed can be taken into account in sentencing an offender. Brooking JA, with whom Batt and Chernov JJA agreed, said that:
“Aggravating circumstances point towards greater severity of sentence. What are the circumstances of the offence for this purpose? May one look only to circumstances which, judged from the standpoint of strict contemporaneity, accompany the criminal act and at nothing which precedes or follows it? It is absurdly artificial to draw a line and limit the circumstances of the offence to those which existed in the period of time (which may be a single second) between the coming into existence of the first and last elements of the offence. …[T]he insistence of common sense that the circumstances of a crime be regarded even though technically its commission has yet to begin or has already ended is not confined to cases of what might be called substantial as opposed to strict contemporaneity.
Long before the Sentencing Act rose above the horizon judges drew on their common sense and their moral sense, as representing that of the community, in deciding what things about a crime could be said to make it more or less serious. They still do; nothing in the Act stops them doing this. Common sense and moral sense, which are and must ever be the essential foundation of sentencing principles and practices, unite in rejecting the notion that “the circumstances of the offence”, for sentencing purposes, are neatly marked out by two lines, one at the technical beginning and the other at the technical end of the crime.”[11]
[10][1999] 2 VR 258.
[11][1999] 2 VR 258, 263–264. See the cases cited therein at 263-266 for support of this proposition as well as Brooking JA’s disapproval of the narrow view expressed in R v Chan (1994) 76 A Crim R 252 and R v Haseloff (unreported, Supreme Court of Victoria, Vincent J, 10 April 1997).
Later in his judgment Brooking JA said:
“If conduct, notwithstanding that technically it follows the crime, is so connected with it as properly to be viewed as one of its circumstances, that conduct, if it aggravates the crime must be placed in the scales. If remorse also falls for consideration, there is no element of “double counting”… if the same conduct is treated as relevant in considering whether, on the whole of the material, the offender has established the fact of the remorse.”[12]
[12]DPP v England [1999] 2 VR 258, 268.
Despite what is said above, it would have been a sentencing error for her Honour to take account of circumstances of aggravation that would have provided the basis for an offender to have been convicted of a more serious offence. As Gibbs CJ said in R v De Simoni:
“[T]he general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted… The combined effect of the two principles … is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.”[13]
[13](1980-81) 147 CLR 383, 389 (citations omitted) (Mason and Murphy JJ agreed). See also 392 (Gibbs CJ) and Wilson (395-396). Although the case concerns the interpretation of the Criminal Code (WA) Gibbs CJ makes it clear that this is a common law principle.
In this case, her Honour did not do so. The offence of assisting an offender after an offence is committed attracts a lower maximum sentence[14] than the maximum sentence which can be imposed on a person who aids and abets the commission of an indictable offence.[15] Her Honour therefore did not err by treating the appellant’s culpability as aggravated by his conduct in not assisting his uncle and driving his brother away after the offence occurred.
[14]Crimes Act 1958, s 325(4) provides for a maximum which is neither more than 5 years, nor more than half the length of the longest term which could be imposed on the principal offender.
[15]Crimes Act1958, s 323 provides that a person who aids and abets may be punished as a principal offender.
In my view her Honour was also entitled to take account of the lies which the appellant told the police because they were an aggravating circumstance indicating the appellant’s lack of remorse as to the fact that he had aided and abetted the assault.
Was the sentence manifestly excessive?
On the assumption that her Honour did not err in taking account of the appellant’s post-offence behaviour, it is necessary to consider whether the sentence was manifestly excessive, as counsel for the appellant submitted.
Counsel representing the DPP referred to Crimes Act1958, s 323 which provides that “[a] person who aids, abets, counsels or procures the commission of an indictable offence may be …punished as a principal offender.”[16] Counsel conceded that this provision does not overcome the obligation of a sentencing judge to consider the relative culpability of the principal offender and a person who aids and abets the commission of the offence. However, he submitted that the appellant’s lesser degree of culpability had obviously been taken into account by sentencing him to a significantly shorter period of imprisonment than his brother.
[16]The purpose of this provision was to abolish one of the distinctions between felonies and misdemeanours. In the case of felonies a person who aided and abetted, counselled or procured a felony, but who was not present at the time of the offence or in a position to assist or encourage the commission of the felony could be prosecuted only as an accessory and not as a principal in the first degree. The section declares the common law in relation to misdemeanours, see LexisNexis, Bourke’s Criminal Law Victoria, Vol 1, Crimes Act1958 (Service 69) [s 323.1].
Regardless of s 323, counsel for the DPP submitted that the appellant’s behaviour required the imposition of a severe sentence. He argued that the appellant’s culpability was similar to that of a driver who waited outside a bank while the principal offender was committing an armed robbery. He said such an offender would usually be sentenced to a term of imprisonment of about two-thirds the length of the sentence imposed on the offender. Counsel contended that a similar approach was appropriate in sentencing a person convicted of aiding and abetting the intentional infliction of serious injury.
Counsel for the appellant, on the other hand, submitted that the appellant’s lack of prior convictions, his limited involvement in the assault on his uncle and his difficult personal circumstances called for the imposition of a more lenient sentence. He said that at the time of the offence the appellant was responsible for caring for his elderly mother, sick father and his wife and children, and that as a result of the attack on and death of his uncle he was suffering from anxiety and depression. He submitted that when the appellant’s limited involvement was taken into account, along with other mitigating factors, her Honour should have imposed a sentence at the very bottom of the range for this offence.
In my opinion the sentence was not manifestly excessive. The applicant aided and abetted his brother in a violent and cowardly attack on a frail elderly man. He stood by while his uncle was viciously beaten with a baseball bat. The appellant’s presence at the scene is likely to have discouraged bystanders from intervening because of fear that they would also be attacked. His moral culpability was aggravated by the fact that he did not seek help for his uncle when he lay bleeding on the ground after the attack and because he drove his brother away from the scene. His behaviour in lying to the police indicates a lack of remorse that also exacerbates his moral culpability.
Her Honour noted that the appellant offered to plead guilty to affray and to intentionally causing serious injury but that he was not prepared to plead guilty on the basis that he had physically participated in the attack; a position which her Honour acknowledged was justified by the jury verdict.
In her reasons her Honour made detailed reference to the personal circumstances of the appellant including the fact that the appellant was responsible for caring for his elderly mother and sick father, and that he had a wife who spoke limited English and two young children.
In relation to the appellant’s mental state she referred to a report from Dr Kochar, a psychiatrist who had been treating the appellant since February 2006 and reported that he was suffering from anxiety, panic, depressed mood and compulsive behaviour with a psychotic state of mind. Her Honour said she would fix “a shorter non-parole period than would otherwise be appropriate”, because of the appellant’s mental state and “the likelihood that [he would] will benefit from counselling and treatment which can best be provided outside of the custodial environment.”[17]
[17]DPP v Asim Selcuk [2006] VSC 465, [26].
The sentence imposed by her Honour took proper account of both mitigating and aggravating factors. In my view her Honour gave adequate weight to the circumstances of the offending, including the fact that the appellant did not physically participate in the attack, and to the background and personal circumstances of the offender. The sentence was within the range of sentences imposed open to the judge for this offence of intentionally causing serious injury[18] and was therefore not manifestly excessive.
[18]Sentencing Advisory Council, Sentencing Snapshot Sentencing Trends for Causing Serious Injury Intentionally in the Higher Courts of Victoria (No 12, September 2006). The median length of imprisonment for a sentence on an individual count was three years and the median total effective sentence was three years and four months. This means that half of all imprisonment terms were under three years and the other half were over three years. See also the summary of recent cases in Judicial College of Victoria, Victorian Sentencing Manual (14 May 2007) 22.9.1.
For these reasons I would dismiss grounds 1 and 2.
Ground 3
Ground 3 alleged that the sentencing discretion should be re-opened in light of fresh evidence relating to the terminal illness of the appellant’s father. When the appellant was sentenced in December 2006 the appellant’s father was in ill health.[19] In April 2007 he was diagnosed with terminal bowel cancer and, on 3 May 2007, shortly before the hearing of the appeal, he died. The appellant’s outline of argument contended that this evidence should be taken into account “as either fresh evidence or as evidence capable of activating [the Court’s] residual discretion to exercise mercy.”
[19]Her Honour observed in her reasons for sentence that the appellant was caring for his father “who suffer[ed] from serious cardiac problems”.
In oral argument counsel for the appellant submitted that, even if specific error or manifest excess were not established, the Court had a residual discretion to show mercy by taking account of the fact that the death of the appellant’s father was likely to make prison more burdensome for the appellant and cause a deterioration in his mental health. He relied upon R v Kim Dung Thi Carmody[20] as authority for that proposition.
[20](1998) 100 A Crim R 41 (“Carmody”).
In my view that submission cannot be substantiated. In Carmody the Court of Appeal held that the judge below had made a specific sentencing error.[21] In exercising its re-sentencing discretion the court reduced the applicant’s sentence to take account of the fact that she had a young child who had reacted very badly to separation from his mother when she was sent to jail. Tadgell JA said that:
“The circumstances here do not, I think, call for the applicant’s immediate release and the seriousness of her offences precludes it. I would propose, however, that the applicant’s sentence be shortened, but on the sole ground that some mercy is warranted.”[22]
[21]Ibid 44 (Tadgell JA).
[22]Ibid 45.
In Carmody his Honour’s comment related to the re-sentencing of the applicant.[23] It is not authority for the proposition that in the absence of specific error or manifest excess an appellate court has a discretion to reduce a sentence solely for reasons of mercy.
[23]The sentencing discretion was re-opened because his Honour had not allowed the applicant any credit for her co-operation with the Commonwealth authorities.
There are three ways in which the father’s illness and later death could be relevant on appeal.
First, it could be contended that the sentence imposed by her Honour was manifestly excessive because she gave insufficient weight to the hardship that imprisonment would impose on the appellant and his family.[24] Unless the appellant satisfies the requirements for the admission of fresh evidence, which are discussed below, the court can only take account of circumstances existing at the date of the sentence. Thus, the appellant’s role in caring for his father during his illness but not the father’s later death, would be relevant to the question of whether the sentence was manifestly excessive. [25] I have already concluded that her Honour gave proper weight to relevant mitigating factors, including the appellant’s role in caring for his mother and father, and that the sentence was not manifestly excessive.
[24]Hardship to the appellant’s family can only be taken into account in exceptional circumstances: see for example DPP vBulfin [1998] 4 VR 114, 131 (Charles JA); R v Edwards (1996) 90 A Crim R 510, 515 (Gleeson CJ).
[25]In exercising her sentencing discretion her Honour could take account of considerations of mercy, see R v Miceli (1997) 94 A Crim R 327.
Secondly, if ground 1 or 2 had been made out, the effect of the father’ s death on the appellant’s mental state could have been taken into account when the court came to exercise the sentencing discretion afresh.[26] Considerations of mercy may play a part in the exercise of that discretion. However, because the appellant has not, in my opinion, established any sentencing error, the death of the appellant’s father cannot be taken into account under this principle.
[26]See for example R v Richard Alfred Nagul [2007] VSCA 8, [31] (Chernov JA).
Thirdly, the death of the appellant’s father may be admissible as fresh evidence which “throws significant new light on the pre-existing facts.”[27] If the evidence falls into this category the court can treat the sentencing discretion as re-opened, even if the original evidence was neither vitiated by a specific error nor manifestly excessive. In re-sentencing the appellant on this basis, the court can take account of considerations of mercy. [28]
[27]R v Duc Duc Nguyen [2006] VSCA 184, [37].
[28]Ibid [44].
The principles which govern the admission of “fresh evidence” were explained by Redlich JA in R v Duy Duc Nguyen:
“It is common ground that this Court may, in limited circumstances – sometimes described as “rare and exceptional” – permit evidence to be led of matters or events that have occurred since the sentence was imposed to enable this Court to reconsider the sentence in the light of that additional evidence. The following principles apply to the admission of such evidence:
(i)the new evidence must relate to events which have occurred since the sentence was imposed;
(ii)the evidence must demonstrate the true significance of facts in existence at the time of the sentence;
(iii)the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive;
(iv)the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;
(v)upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive; and
(vi)the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.”[29]
[29]R v Duy Duc Nguyen [2006] VSCA 184, [36] (Redlich JA) (Citations omitted).
In my view these principles do not permit admission of fresh evidence in this case. In Duy Duc Nguyen the applicant had been hospitalised for a mental condition before the offences were committed. A psychological assessment provided to the sentencing judge said that the appellant suffered “from a mild degree of psychotic disorder compounded by depression”. His wife had Hepatitis C but her condition deteriorated after the applicant was sentenced and her ability to care for herself and the couple’s children was significantly reduced. The Court of Appeal held that the sentence imposed on the applicant should be varied because:
“the applicant’s family circumstances, as now known to the Court, will make imprisonment a greater burden for him and create an appreciable risk of a serious deterioration in his health. The new evidence identifies the risk that the applicant may suffer a psychiatric relapse in the face of this additional stress. The applicant requires careful psychiatric monitoring and treatment. These circumstances and the serious deterioration in the health of Ms Vu, which has substantially impaired her capacity to care for their young child, give rise to considerations of mercy[30] and warrant the reopening of the sentencing discretion, notwithstanding that no error of any kind was present in the judge’s sentencing reasons.”[31]
[30]See the cases discussed in R v Holland (2002) 134 A Crim R 451, [8]–[9] (Eames JA).
[31]R v Duy Duc Nguyen [2006] VSCA 184, [36], (Redlich JA).
By contrast, the sentence imposed on the appellant has not “turned out to be excessive” because his father has died. The appellant will no longer have to care for his father when his term of imprisonment ends. He may be very emotionally upset by the death of his father, but it is not unusual for an offender to lose a family member while they are in custody. In her sentencing remarks her Honour said that the appellant was suffering from “anxiety, panic, depressed mood and compulsive behaviour” as a result of his involvement in the attack on his uncle. But there is no evidence that the appellant’s psychiatric condition has deteriorated because of his father’s death or because of his concern that about the effect of that death on other family members. For these reasons I do not regard it as appropriate to re-open the sentencing discretion on the basis of admission of new evidence.
The re-sentencing discretion
Finally, even if I were to take the view that the appellant had made out a specific error so that it was necessary to exercise the re-sentencing discretion, I would not impose a different sentence to that imposed by her Honour. In reaching that conclusion I have taken account of the circumstances of the offence (including the appellant’s limited role), the various mitigating factors referred to in her Honour’s reasons for sentence,[32] the lack of remorse indicated by the appellant’s behaviour after the offence occurred and the distress suffered by the appellant as the result of his father’s diagnosis of a terminal illness and death, while the appellant was in jail.
[32]See also paras 43 and 46–47 above.
In my view general deterrence must be given significant weight in sentencing the appellant. Mr Duran’s beating was triggered by the breakdown of Altaman and Sezgin’s marriage. Family members must understand that they have a responsibility to discourage a person who is distressed or angry because of a separation or divorce from acting violently and that they will be punished if they participate in, or support, that violence. The sentence was well within the range of sentences which could be imposed for this offence.
For these reasons I would dismiss the appeal.
6
0