R v Taslik
[2005] VSCA 35
•23 February 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 30 of 2004
| THE QUEEN |
| v. |
| NAYAZI TASLIK |
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JUDGES: | CALLAWAY and BATT, JJ.A. and WILLIAMS, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 23 February 2005 | |
DATE OF JUDGMENT: | 23 February 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 35 | |
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Criminal law – Sentencing – Attempted armed robbery and recklessly causing injury (2 counts) – By heroin addict with like prior convictions using Stanley knife in Lonsdale Street in daytime on woman and (count 3) her male companion – Injuries minor – Two years' imprisonment on each injury count of which half cumulated manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan, Q.C., D.P.P. with Mrs C. Quin | Stephen Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Applicant | Mr L. Gwynn | Randles Cooper & Co. |
CALLAWAY, J.A.:
I shall ask Batt, J.A. to deliver the first judgment in this case.
BATT, J.A.:
On 19 February 2004 the applicant, who was born in June 1978, pleaded guilty on arraignment in the County Court at Melbourne to one count of attempted armed robbery (count 1) and two counts of recklessly causing injury (counts 2 and 3). The maximum penalties for those offences were imprisonment for 20 years in the case of attempted armed robbery and for five years in the case of recklessly causing injury. The applicant also pleaded guilty, pursuant to s.359AA of the Crimes Act 1958, to one summary charge of driving while his authorisation to do so was suspended, contrary to s.30(1) of the Road Safety Act 1986. The applicable maximum penalty for that offence was a fine of $3,000 or four months' imprisonment.
The applicant admitted one previous finding of guilt and 37 previous convictions from appearances in the Magistrates' Court between 16 August 1996 and 6 February 2002, convictions for armed robbery and recklessly causing serious injury sustained in the County Court on 6 April 1998 and a conviction by a traffic infringement notice in July 2003. The convictions in the Magistrates' Court were principally for theft, burglary, and possession of, use of and trafficking in heroin, but there were two convictions for possession of a regulated weapon. In the County Court the applicant had been released on an intensive correction order on the count of causing serious injury recklessly and subsequently breached that order, and had been sentenced to imprisonment for two years for armed robbery, such sentence being wholly suspended for a period of two years, but had breached that sentence also, with no action being taken by way of restoration of it. There was also amongst the orders of the Magistrates' Court an order for another suspended sentence, which also was breached.
On 24 November 2002 the applicant was convicted in the Magistrates' Court at Melbourne of offences committed subsequently to the present ones, namely possession of heroin and driving while disqualified.
After the prosecutor had outlined the facts of the offences, his Honour heard a plea in mitigation of penalty, during which counsel for the applicant tendered a report by Dr Lester Walton, psychiatrist, dated 6 May 1997, a report by Mr Bernard Healey, psychologist, dated 29 January 2004 and some documents from Moreland Hall relating to participation by the applicant in courses.
On the same day his Honour sentenced the applicant to be imprisoned for three-and-a-half years on count 1, for two years on each of counts 2 and 3 and for one month on the summary charge. He directed that one year of the sentence on each of counts 2 and 3 be served cumulatively upon that on count 1, so that the total effective sentence was imprisonment for five and a half years. His Honour fixed a non‑parole period of three-and-a-half years.
On 4 March 2004 the applicant gave notice of application for leave to appeal against his sentence on counts 1, 2 and 3 on the following grounds (which I slightly summarise and edit), namely, that the sentence was manifestly excessive (ground 1), and that the sentencing judge failed to give sufficient weight to the applicant's struggle with heroin addiction since approximately the age of 18 and the fact that the current offences were directly related to a relapse in the use of heroin (ground 2), to his attempts at rehabilitation since the offences including steps taken while in custody (ground 3), to his personal circumstances and significant history of physical and emotional abuse by his father (ground 4), to the level of cooperation with authorities and admissions made to authorities (ground 5), to Mr Healey's report (ground 6), or to the plea of guilty and the remorse indicated in the depositional material (ground 7).
On 3 September 2004 a single Judge of Appeal, pursuant to s.582 of the Crimes Act, refused leave to appeal. The applicant duly elected to have his application determined by the Court of Appeal.
Today counsel for the applicant applied for leave to amend the grounds by adding, as ground 8, that the sentencing judge's discretion miscarried by reason of his being misled by an error in the further presentment and, as ground 9, that his Honour erred by ordering that a substantial portion of the sentences imposed on counts 2 and 3 be cumulated upon that imposed on count 1. The burden of proposed ground 8 was that amongst the offences of which the applicant admitted having been convicted in the Magistrates' Court at Preston on 20 November 2001 was the offence of aggravated burglary (which carried a maximum penalty of 25 years' imprisonment), whereas the offence of which he was in fact convicted was attempted burglary (which carried a maximum penalty of five years' imprisonment). The court stated that it would hear argument on those proposed grounds and in its judgment would rule on whether leave should be granted.
Before considering the grounds of proposed appeal it is necessary to state the facts of the offending and to summarise his Honour's reasons, including his discussion of facts personal to the applicant. At about four o'clock in the afternoon of Saturday 20 September 2003 one Ms Taylor and her boyfriend, one Mr Garcia, were walking eastward along the north side of Lonsdale Street, Melbourne. They stopped near the Wesley City Mission Church. Mr Garcia went down a laneway. Ms Taylor remained standing in an alcove just off the footpath, holding her handbag. The applicant approached Ms Taylor and asked for her handbag, holding a box‑cutting knife (otherwise apparently known as a Stanley knife), with the blade of some 10 to 15 cm extended, to her throat. He tried to take the handbag from her, making another aggressive demand and grabbing it by the handle.
Mr Garcia, who was some 15 feet away, heard Ms Taylor scream and came towards the applicant. She clutched the Stanley knife to try and remove it from her throat and her thumb was cut. The applicant then elbowed her in the face, forcing her to the ground. The applicant lunged at Mr Garcia with the Stanley knife and a number of punches were thrown. Mr Garcia was punched several times to the face and received a cut to the right middle finger of his right hand, he having raised his right arm to fend off blows. The cut was clearly from the Stanley knife. In the course of this encounter, the blade of the knife was broken. The applicant ran off. He returned a little later, driving a car, to collect his hat (which was bloodstained) and sunglasses. That driving constituted the offending the subject of the summary charge.
Besides the cuts already mentioned, Ms Taylor received abrasions to the wrist and bruising to her cheekbone and Mr Garcia swelling and bruising to the head. In addition, Ms Taylor lost a necklace with a gold pendant, which she had been wearing when attacked. A photograph, which his Honour assumed had been taken shortly afterwards, showed Ms Taylor apparently bruised and distressed.
When interviewed after his arrest on 24 September 2003, the applicant gave a version of events which, for good reason, as it seems to me, his Honour declined to accept and which therefore need not be discussed.
Early in his sentencing remarks his Honour said that the applicant had pleaded guilty at an early date and would get the benefit of that. Having regard to the applicant's version, his Honour expressed himself as being somewhat dubious about whether any remorse the applicant displayed was genuine. That did not mean that it was an aggravating factor but only that he, the judge, did not give it the usual force that genuine remorse would attract. His Honour referred to the applicant's prior convictions, saying that those reflecting dishonesty and general drug offences were not surprising with a person who had been addicted (as the applicant had been) to heroin since his teens. Of more significance, he said, were the two prior convictions for possession of regulated weapons and an aggravated burglary conviction. As to the latter his Honour said that he was unaware what the circumstances of aggravation were and accordingly "[gave] that prior conviction no more weight than if it were for simple dishonesty". More disturbing were the County Court convictions for causing serious injury recklessly and armed robbery.
After he had stated the facts of the offending, his Honour, noting that no victim impact statement had been filed, said that such a document was not needed to comprehend the terror that an attack of this nature would evoke. A Stanley knife was notoriously sharp and would be an extremely frightening weapon for anyone to be confronted with. The chances of being cut were great. He did not accept the submission that the attempted armed robbery and associated assault charges were at the lower end of the scale. The acts were committed in broad daylight and were offences which the community was justifiably horrified by. In the applicant's position, with a prior conviction for armed robbery, they were inexcusable.
His Honour stated that the serious offending called for general deterrence and specific deterrence and, with a prior conviction for armed robbery, a degree of public protection. "People must be allowed to stand in the street in broad daylight in the middle of the city and not be attacked with a weapon of that nature", said his Honour. I entirely agree.
His Honour accepted that the applicant's continuing heroin problem explained why the attack took place, but there was, he said, a difference between committing offences of dishonesty and escalating them to thefts with such force. The addiction did not materially affect the applicant's moral culpability.
The applicant was 25 years of age. Drawing on the reports of Dr Walton and Mr Healey, his Honour accepted that the applicant's father had been violent to him and other members of his family. (I would add that the applicant suffered a serious head injury in a car accident at the age of eight and was stabbed by a young person four times at the age of 16, being hospitalised for a week.) His Honour continued that the applicant had a somewhat erratic schooling, finding himself frequently in situations of conflict. His education ended in Year 10. He obtained employment on a few occasions. (In fact he was an assistant warehouse manager for three years.) But it was easy to understand that he had troubled late teens. The reports traced the progression of his heroin addiction and of his offending. As counsel put it on the plea, the applicant's difficulties had been that he relapsed into heroin use. (He seems to have started on regular use of cannabis at the age of 12 and then later moved to heroin.) At one stage, his Honour said, the applicant spent a year‑and‑a‑half in the Turkish army. (It may have been longer, in fact.) But after his last release from prison before the present offending the applicant had enrolled at Kangan TAFE and had formed a relationship with a young woman who had a 15 month-old child and was at the time in Sydney because the applicant was unable to support her while on remand.
His Honour noted that counsel had submitted that the applicant indicated a wish to turn his life around, but, said his Honour, he (the applicant) had said that at least twice before. His Honour considered that the applicant had prospects for rehabilitation, but they were totally within his hands. It had been properly conceded that a custodial sentence was inevitable. His Honour then proceeded to pronounce the sentence already stated.
I would add the following in relation to the applicant himself. In his 1997 report Dr Walton stated that the applicant was of normal intelligence and that there was no evidence of psychotic disturbance. He did have significant psychological problems, including a post‑traumatic stress disorder and depression. He did not seem to be a habitually violent person. Mr Healey stated that the applicant was of average intellectual capacity, but, as to personality, had emotional disturbance with depression, anxiety, familial discord and social alienation. He referred to the applicant's conformity while in prison and other matters affording some encouragement.
I turn now to the application for leave to amend. As regards proposed ground 8, it was conceded for the respondent that the further presentment was in error in its reference to aggravated burglary. I would refuse leave to add this ground, however, because it has no prospect of success in that the error was immaterial because, in giving the conviction no more weight than if it were for simple dishonesty, his Honour treated the conviction as one for an offence of dishonesty, not (as was in question here) an offence of violence. I would, on the other hand, give leave to add proposed ground 9 because it has substance, as will appear.
It is convenient to take all the grounds together. If the total effective sentence was not manifestly excessive, the non‑parole period in this case could not, I think, be such. Therefore I confine attention to the individual sentences and the directions for cumulation. They, of course, produce the total effective sentence. Grounds 2 to 7 (inclusive) were treated as particulars of ground 1, that the sentence was manifestly excessive. I would, however, say that I consider that his Honour took into account, and gave sufficient weight to, the factors relied on in ground 2 to 7 of which he was satisfied. His Honour's approach to the applicant's heroin addiction was justified by R v. Bouchard[1]. The one factor which his Honour did not accept, or at least was dubious of, was remorse.
[1](1996) 84 A.Crim.R. 499 at 501‑502
These were offences in the punishment of which general deterrence, specific deterrence and the protection of the public had to bulk large. I have no doubt that the sentence of imprisonment for three‑and‑a‑half years for attempted armed robbery was not manifestly excessive, but, rather, well within the range of available sentences open to his Honour in the exercise of a sound discretionary judgment. Nor was the contrary submitted orally for the applicant. Indeed, the sentence was lenient. In support of the views which I have just expressed, I rely particularly on the acts of the applicant in committing the offence and in particular his use of the Stanley knife; the targeting of a female victim; the terror that must have been experienced by her; the applicant's prior convictions and in particular those sustained in the County Court; and the acknowledged prevalence of armed robbery and attempts thereat, particularly on pedestrians in the part of Melbourne's Central Business District in question and particularly when committed in broad daylight by a young man affected by drugs or for the purpose of obtaining the wherewithal to purchase drugs. His Honour was correct to reject the submission that the offence of attempted armed robbery was at the lower end of the scale of offences of that kind. [2]
[2]In his reasons his Honour treated the submission as covering the associated assault charges, but I do not so read the submission or his Honour's rejection of it during the plea hearing.
The next question is whether the sentences on counts 2 and 3 and the cumulation directions, or any of those orders, were manifestly excessive. I must say that when I first read the papers in this matter I was struck by the fact that each of those sentences was for two‑fifths of the maximum and that half of each sentence had been cumulated. As regards cumulation, it was submitted for the applicant that the directions were, on the whole, excessive having regard to the fact that the counts arose out of what was said to have been effectively a single incident; that the injuries sustained were not intended; that they were minor; that the offending lasted for a brief period only; and that the sentence imposed on count 1 was substantial and comprehended a large degree of the aggravating circumstances of the incident, that is the placing of the victims in fear and the use of an offensive weapon. On the other hand, it was submitted in writing for the respondent that, although the counts arose out of the same circumstances, some cumulation was warranted because the injuries were inflicted in the course of a struggle after the commission of count 1. That last proposition is not, I consider, correct in the case of count 2 and, in fairness, the Director virtually acknowledged that in his oral submissions: Ms Taylor received her injuries entirely in the course of the attempt to rob her of her bag. The assault on Mr Garcia, on the other hand, was subsequent to and separate from the offences against Ms Taylor. Likewise, the aggravating circumstances of count 2 were largely comprehended in the sentence on count 1, but that is not so in the case of count 3, where there was a different victim.
In response to a question from the presiding judge, the Director very fairly stated that the individual sentences on counts 2 and 3 were very high and were stern or very stern.
Notwithstanding the use of a Stanley knife and the applicant's prior convictions for armed robbery and recklessly causing serious injury, I have come to the conclusion, essentially for the reasons advanced by Mr Gwynn and in light of the Director's fair submissions and answer, that the sentences on counts 2 and 3, and the cumulation directions, viewed as a whole, are manifestly excessive. In particular, in the circumstances of this case, I consider that there should have been no cumulation
of the sentence on count 2.
If my conclusion is shared by the other members of the Court, the applicant will fall to be resentenced. In the light of observations which I have made earlier, I would sentence him to be imprisoned for four years and six months on count 1, and for 15 months on each of counts 2 and 3 and would cumulate six months of the sentence on count 3 on the sentence on count 1, so that the total effective sentence on all counts and the summary charge would be imprisonment for five years. I would fix a non‑parole period of three years. It will be seen that I would increase the sentence on count 1, though not the overall sentence. The applicant's counsel was informed by the Court during the hearing that this could happen if the application was granted, which he recognised.
I would therefore grant leave to appeal against sentence in relation to counts 1, 2 and 3, treat the appeal as instituted and heard instanter and allow the appeal and resentence the applicant as I have indicated.
CALLAWAY, J.A.:
I agree.
WILLIAMS, A.J.A.:
I agree.
CALLAWAY, J.A.:
The formal orders of the Court will be as follows:
Leave to add the proposed ground 8 is refused.
Leave to add the proposed ground 9 is granted.
The application for leave to appeal against sentence is granted.
The appeal is treated as instituted and heard instanter and is allowed.
The sentences imposed below on counts 1, 2 and 3 are quashed and, in lieu thereof, the appellant is sentenced as follows:
Count 1:four‑and‑a‑half years' imprisonment;
Count 2:15 months' imprisonment;
Count 3:15 months' imprisonment.
The Court directs that six months of the sentence imposed on count 3 be served cumulatively upon the sentence imposed on count 1.
The sentence imposed for the summary offence is not affected by the appeal.
The total effective sentence on all counts, and for the summary offence, is therefore five years' imprisonment. A non‑parole period of three years is fixed.
It is declared that the period of 427 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.
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