R v Tuncbilek

[2000] NSWCCA 465

CITATION:	R v Tuncbilek [2000] NSWCCA 465
FILE NUMBER(S):	CCA 60349/00
HEARING DATE(S):	24/10/00
JUDGMENT DATE:	24 October 2000
PARTIES :	Regina v Tarkan Tuncbilek
JUDGMENT OF:	Sheller JA at 40, 42; Dowd J at 41; Smart AJ at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/0587; 99/11/0707
LOWER COURT JUDICIAL OFFICER :	Ainslie-Wallace DCJ

COUNSEL :	(Crown): P Hock (Respondent): R Burgess
SOLICITORS:	(Crown): S E O'Connor (Respondent: B Duchen
CATCHWORDS:	Crown Appeal against sentence - armed robbery - illness and intellectual disabilities.
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	R v Henry (1999) 46 NSWLR 346 Mason (2000) NSWCCA 82 Chanh Thanh Ma (NSWCCA, 31 March 1995, unreported) Bavadra (2000) NSWCCA 292 House v The King (1936) 55 CLR 499 Dinsdale v The Queen (2000) HCA 54
DECISION:	Appeal Dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60349/00

SHELLER JA

DOWD J

SMART AJ

Tuesday 24 October 2000

REGINA v Tarkan TUNCBILEK

JUDGMENT

1   SMART AJ: The Director of Public Prosecutions appeals against the alleged inadequacy of a sentence for robbery while armed with a dangerous weapon. 2   The sentence was one of six years imprisonment with a non-parole period of three years. The judge took into account two unrelated charges of robbery whilst armed with a dangerous weapon and one charge of take and drive conveyance without the consent of the owner. The Director also appeals against a concurrent sentence of three years imprisonment for a second armed robbery committed immediately after the first armed robbery and in the same location. The prisoner was convicted by a jury after a trial lasting about ten days. 3   On 21 May 1999 a Holden Commodore VKF 299 was stolen from Little Church Street, Ryde. The prisoner and two co-offenders travelled in the stolen vehicle to Concord West newsagency. The vehicle stopped a short distance from the newsagency. One of the co-offenders remained in the driver's seat of the vehicle with the engine running. 4   About 2.30 to 2.40 pm Mrs Sorbello was serving a customer in her newsagency. A co-offender followed by the prisoner entered her shop. The prisoner produced a silver replica pistol, asked her where the safe was and then told her to open the till. The pistol was pointed against her chest. About $120 was removed from the till. The co-offender was in the office area. 5   Mrs Sorbello's son had been working outside his mother's shop and noticed a man walk up the street and into the shop. When the son entered the shop he was directed to lie on the floor in front of the counter and did so. Whilst the son was lying on the ground the prisoner tapped him on the shoulder with the pistol and demanded his bum bag. After obtaining the bag, both offenders left the newsagency. That bag contained the son's wallet with about $120 in cash and personal items. 6   The prisoner and the co-offender returned to the stolen vehicle and the three offenders left the area in the vehicle. A short time later police observed the vehicle, it was followed and a pursuit commenced. Ultimately, the stolen car was crashed and the occupants ran away. The prisoner and a co-offender were apprehended some distance from the scene of the accident. The driver was arrested nearby and has pleaded guilty to driving the car used in the robbery. 7   Mr Hickey, a co-offender, who was tried at the same time as the prisoner, absconded while the jury was deliberating. He was convicted in his absence. 8   The prisoner's defence was that he was not part of the robbery but had been in the area and was arrested on his way to a shop which hired out videos in the Turkish language. He claimed that he intended to hire some videos to watch with his mother. 9   As to the offences taken into account, the first robbery whilst armed with a dangerous weapon occurred on 4 April 1999 when the prisoner and co-offender entered a bottle shop at Paddington. The prisoner, who was armed with a handgun, pointed it at the chest of the lone sales assistant while the co-offender punched the sales assistant in the jaw, knocking him into a display. The prisoner and the co-offender rifled through drawers and the till, removing about $200. They demanded the victim's wallet, but it was not available in the shop. 10   The second armed robbery taken into account occurred on 17 May 1999. The prisoner stopped the lone female victim at an intersection in Chippendale on the pretence of asking for directions. The prisoner produced a silver coloured semi automatic styled pistol from his shorts and menaced the victim, telling her to get into her car. The victim, afraid for her life, backed away and the prisoner grabbed the victim's car keys. She also gave the prisoner her handbag. The prisoner got into the victim's car, valued at $38,000, and drove off. She was left traumatised on the street. 11   Arising out of this incident the prisoner was also charged with take and drive conveyance without consent of owner. 12   The prisoner was born on 24 August 1977. He has a lengthy record, beginning in July 1991. The record includes major and lesser offences. These include sexual assault offences, break, enter and steal offences, driving offences, robbery in company, escape lawful custody and assault occasioning actual bodily harm. 13   In October 1997 he was sentenced in respect of three counts of robbery being armed and in company, and received a minimum term of three years ending on 3 January 1999 and an additional term of three years ending on 3 January 2002. Six counts of robbery being armed and in company were taken into account as well as charges of robbery, common assault and assault police. 14   The subject offences and those taken into account were committed while the prisoner was on parole. On 23 May 2000 the prisoner's parole order was revoked and he was directed to serve the balance of the parole period of two years seven months and 14 days. Because the prisoner's sentences started from 21 May 1999 this means that the prisoner will serve but two days of the revoked parole period. This is not uncommon where there are successive sentences. 15   The materials reveal that the prisoner's father died in 1991 and that the prisoner was much affected by this and became confused. The prisoner's sister said that the prisoner had always been difficult and had behavioural problems. Her father did not understand that these behavioural problems, when eventually diagnosed, were a product of an illness, and used to be violent towards the prisoner. The prisoner's mother and sister and older brother have been supportive of him and this continues. 16   The sister stated that her mother has poor English and was unable to comply with the treatment and medication regimes prescribed for the prisoner by doctors from time to time. The report of Dr G L Serfontein of 4 September 1992 records that he had assessed and treated the prisoner in the past for attention deficit disorder. As at the date of the report, Dr Serfontein thought that the prisoner still had distinct features of his attention deficit disorder. 17   Dr Serfontein noted that apart from the prisoner's inattentiveness and restlessness, he remained impulsive and had a low frustration threshold. His self esteem was poor. Dr Serfontein stressed that it was crucial that the prisoner take his medication. In his report of 7 December 1992 Dr Serfontein wrote that the prisoner had a severe form of attention deficit disorder and that he should be on his medication every day of the year. Dr Serfontein stated that the prisoner's behaviour could only be modified when he was given the abilities to cope with changes in his environment and that he could not do this when the attention deficit disorder was untreated. 18   The prisoner's sister said that her brother was always getting into trouble at school and was not accepted there. He sought the company of children older than himself and quickly fell into bad company. 19   In her report of April 1997 Associate Professor Susan Hayes wrote that the prisoner's receptive language is at a level of three years and eleven months. She continued:

"Mr Tuncbilek is mildly intellectually disabled and overall functions cognitively at a level lower than 99.7 per cent of the population, and his adaptive behaviour is at a level lower than 99.9 per cent of the population. In particular, he has very poor communication skills, especially receptive language. He says that he has great difficulty understanding what people say to him, and he also finds it difficult to express himself verbally. In relation to the diagnosis of attention deficit disorder it is possible that he suffered from attention deficit disorder, and may still do so to some extent, but also his intellectual disability means that he has a short attention span. His intellectual disability plus aggressive behaviour at school has meant that he has received inadequate schooling and assistance over the years. Mr Tuncbilek needs to be prepared for release in the context of having a mild intellectual disability and serious deficits in communication skills. He cannot comprehend his own behaviour, and has difficulty understanding the long term effects of things that he does. When he describes himself as acting on the spur of the moment, this is probably a correct description of the situation, because he does not think through what he is about to do. He needs to be involved in anger management classes, specifically designed for people with a mild intellectual disability. He also needs to be involved in vocational preparation programs, similarly designed for people with a mild intellectual disability. Since he is highly motivated towards being a good parent for his son, it would also be a good strategy to involve him in parenting skill classes, as he would be able to perceive the practical application of such classes.

"The combination of aggressive behaviour, poor attention span, and a mild intellectual disability has contributed to Mr Tuncbilek's offending behaviour in the past, and so it is vital that rehabilitation programs be designed bearing in mind his intellectual disability".

20   Dr Thomas Oldtree Clark examined the prisoner on 18 July 1997. He noted that he was not well educated due to his difficulty. He also noted the findings of Professor Hayes that the prisoner had difficulty in understanding what people say to him and had received most of his schooling in detention centres. Dr Clark concluded that the prisoner still had an attention deficit syndrome and that this was now an adult version of the disorder. He concluded:

"What is clear from the above is that this man does have a disorder recognised as a psychiatric syndrome and attempts have been made to treat him. He should enter into a suitable program. He has in addition the problems of disculturalisation, he moves in the hinterland of society when he is out of prison, and any controls put on his behaviour when he is released should recognise this.

There is a glimmer of hope in the paradox of his steady relationship with his family, with his mother and sister particularly. There are positives to him as well as the obvious disturbance he suffers. His intellectual retardation is an effect of this disorder, but if controlled he will learn to a degree, that is, there is some hope for him."

21   A progress report from the Probation and Parole Service, Annandale district office, records that the prisoner admitted that he relapsed into heroin usage three or four weeks prior to the alleged offence and that over a period of ten days this habit cost $400 daily. The report states:

"He was given an extensive psychological assessment one month prior to the offence near the time of his admitted relapse. The assessment again confirmed his mild intellectual disability and considered he would be vulnerable to the influence of peers. He was otherwise outwardly progressing well at that time. Mr Tuncbilek had the benefit of strong family support but his mother and sister stated that he descended quickly to heavy drug usage through the adverse influence of associates."

22 His family had arranged for him to enter a detoxification unit from 31 May 1999 but unfortunately the subject offences intervened. 23 In his evidence the prisoner dealt briefly with his learning difficulties and his difficulties at school. He got into trouble and went to a number of boys' homes and juvenile detention centres. He said that he started taking drugs like marijuana when he was about eleven or twelve. He started drinking about fifteen or sixteen. He started on heroin a couple of years later. Heroin addiction came later still. He experienced difficulties with his girlfriend over their son. He said that he took heroin while in gaol, was free of heroin on his release, then, about six weeks after that, took heroin and reached the stage where he needed treatment. With the encouragement of his family, he agreed to see a doctor and did so on 15 March 1999, receiving a referral to a specialist for his heroin addiction. 24 The judge held that given the intellectual capacity of the prisoner, the element of deterrence was not as prominent as in other cases where there was no such disability. However, she expressly recognised that general deterrence must play a part in the sentencing process. She recognised that the sentence imposed must reflect individual deterrence. She correctly took into account the clear need for rehabilitation of the prisoner from his addiction to enable him to lead a crime free life on his eventual release, and that he would need considerable support and guidance. It is obvious from Professor Hayes' report that he will need in depth support of a special kind for an extended period. 25 The judge emphasised the objective seriousness of the offences and was careful not to lose sight of the overall criminality of the prisoner's actions. The judge had regard to the judgment of this Court in R v Henry & Ors (1999) 46 NSWLR 346. She held that this was not a case in which the prisoner made a real choice in using drugs, because of the age at which he started using drugs and became addicted to them, and his limited intellectual functioning. 26 She took his drug addiction into account in a limited way in mitigation, but recognised that the sentence imposed "must recognise that the prisoner was engaged in violent crimes against members of the public". 27 The judge correctly recognised that there were special circumstances justifying a longer than usual non-parole period. These included the prisoner's youth, his need for rehabilitation and a significant period of support and supervision on his release from prison. The judge's finding as to special circumstances was not challenged on this appeal. 28 The judge gave the question of the correct sentence significant thought and took into account the relevant considerations. There was an obvious tension between the length of sentence required by the overall criminality revealed by the prisoner's conduct and the special subjective features including his illness, namely, attention deficit syndrome, which needs controlling by medication after the necessary trials, and his marked disabilities with their inevitable consequences, not the least of which is being easily led. There is also his drug addiction and his relative youth. What makes this appeal so troubling is that it is his medical and intellectual condition which contributes much to his behavioural problems and the grave criminality of his actions. 29 The Crown contended in its written submissions that the judge made three specific errors:

(a) she mistakenly stated that the maximum penalty was 20 years whereas s 97(2) of the Crimes Act 1900 fixes a maximum penalty of 25 years. It was submitted that this error alone entitled the Court to intervene and re-sentence: Mason (2000) NSWCCA 82; Chanh Thanh Ma NSWCCA 31 March 1995, unreported. They were cases of overstating the maximum penalty in appeals by an accused.

(b) she failed to give sufficient weight to the offences to be taken into account. There were two separate and unrelated armed robbery offences. It is necessary to give proper weight to the offences to be taken into account or the procedure fails to achieve its true purpose: Bavadra (2000) NSWCCA 292, paragraph 31 per Wood CJ at CL.

(c) The judge gave insufficient weight to the seriousness of the prisoner being on parole at the time of the offences and the abuse of his conditional liberty which this represented.

30 It was submitted that the prisoner's extensive criminal record, including previous convictions for armed robbery for which he was on parole, the weapon used being more dangerous than a knife and no plea of guilty were factors which led to a situation more serious than that contemplated in Henry & Ors (supra). Those factors justified a significantly higher head sentence than the five year benchmark. The judge did not mention the factors in the present case which were more serious than those in Henry but she did mention the similar features. Thus, it was submitted little or no additional penalty had been imposed for the offences to be taken into account. Reliance was placed on Bavadra. 31 I doubt if the misstatement of the maximum penalty had other than a negligible impact on the penalty imposed. The misstatement may well have been a slip of the tongue. No-one at the sentence hearing drew the judge's attention to the point. I do not regard a replica toy pistol as being as dangerous as a knife as was submitted. The reverse is the position in fact, even though being armed with a replica toy pistol carries the greater maximum penalty. There are other reasons for this. 32 The judge stated expressly that she took into account the two offences of armed robbery contained on Form 1 and she gave a short summary of these. She also took into account the offence of stealing the car and noted that it related to the second robbery. The judge took into account the total criminality, stating that the subject offences were part of a course of conduct during which the prisoner committed a number of distinct acts of criminality and that the offences all involved conduct of a similar kind. 33 The judge treated the commission of the offences while the prisoner was on parole as a matter of aggravation. 34 While the understatement of the maximum penalty was a specific error of negligible consequence, the other matters relied upon support an argument that while no other specific error can be established, the leniency of the sentence itself bespeaks error. This is the last alternative referred to in House v The King (1936) 55 CLR 499 at 505. Dinsdale v The Queen (2000) HCA 54 reminds this Court of the need to find and identify error of consequence. 35 I approach the matter on the basis that the Court has to decide whether the leniency of the sentence itself bespeaks error. I appreciate the force of the arguments of the Crown which I have earlier recounted. The offences were more serious than those in Henry. There was no plea of guilty. He had a poor record and it contained many similar serious offences. He had previously received a similar sentence for similar offences. 36 There were serious armed robberies to be taken into account and the offences were committed on parole. Further, he will not serve the balance of his sentence for his earlier offences. Of course, it was the offences for which he was sentenced that led to the revocation of the parole. 37 Had it not been for the illness and intellectual disabilities of the prisoner, the sentence would have been manifestly inadequate, that is to say, the sentence itself bespeaks error given the matters mentioned earlier. 38 Because of the prisoner's illness and intellectual disability, the sentences imposed, though on the low side, ought not to be disturbed. This is an exceptional case. I emphasise the need for the prisoner to receive proper treatment in gaol for his problems and for there to be a well-planned and supervised program on his release so as to prevent what happened after his release in January 1999. 39 I propose that the Crown appeal be dismissed. 40 SHELLER JA: For my part I have found this appeal very troubling. In all the circumstances it strikes me that the penalty imposed was indeed a lenient one. However, for the reasons that Justice Smart has given, I have come to the conclusion that the ground has not been made out by the Crown for this Court to intervene, and, accordingly, I agree with the orders that his Honour proposes. 41 DOWD J: I agree with the remarks of the presiding judge and agree with the remarks of Justice Smart and the orders that he proposes. 42 SHELLER JA: Accordingly, the appeal is dismissed.

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