Regina v Taha; Regina v Yuksel

[2000] NSWCCA 520

Reported Decision: 120 A Crim R 161

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Taha; Regina v Yuksel [2000] NSWCCA 520
FILE NUMBER(S):	CCA 60541/00; 60542/00
HEARING DATE(S):	04/12/00
JUDGMENT DATE:	4 December 2000
PARTIES :	Regina v Mustafa Taha; Regina v Sedat Yuksel
JUDGMENT OF:	Meagher JA at 1, 60 & 67; Hidden J at 61; Carruthers AJ at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/21/0264; 99/21/0265
LOWER COURT JUDICIAL OFFICER :	Coorey DCJ

COUNSEL :	(Crown): P G Berman SC (Respondent Taha): R S Toner SC (Respondent Yuksel): J Manuell
SOLICITORS:	(Crown): S E O'Connor (Respondent Taha): Craddock Murray & Neumann (Respondent Yuksel): D J Humphreys
CATCHWORDS:	SENTENCING - Crown appeals against inadequacy - aggravated robbery in company - whether sentencing judge erred in not holding that weapon was loaded at the time of the robbery - retrospective operation of the doctrine of continuance applied.
LEGISLATION CITED:	Criminal Appeal Act 1912 Crimes Act 1900
CASES CITED:	Beresford v Justices of St Albans (1905) 22 T.L.R. 1 R v Olejarnik (1994) 33 NSWLR 567 R v Henry (1999) 46 NSWLR 346 R v Morrissey (CCA, unreported, 15 July 1994) R v Doorey [2000] NSWCCA 456 R v Silver [1999] NSWCCA 108 R v Tran (1999] NSWCCA 109
DECISION:	See paragraph 59 (R v Taha) See paragraph 56 (Regina v Yuksel)

IN THE COURT OF

CRIMINAL APPEAL

60541/00
60542/00

MEAGHER JA
HIDDEN J
CARRUTHERS AJ
Monday, 4 December 2000

REGINA v Mustafa TAHA
REGINA v Sedat YUKSEL

JUDGMENT

1    MEAGHER JA: I will ask Acting Justice Carruthers to give the first judgment.

2 CARRUTHERS AJ: This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 against the sentences imposed by his Honour Judge Coorey DCJ at the Sydney District Court on 21 July 2000 on Mustafa Taha and Sedat Yuksel. The appeals have been by consent heard together.

3    On 21 February 2000 the respondent Yuksel pleaded guilty before his Honour Judge Price DCJ to one count of robbery whilst armed with a dangerous weapon (s97(2) of the Crimes Act, 1900). He also asked the Court to take into account four offences on a Form 1, viz. to drive a conveyance without consent, negligent driving, possession of an unauthorised firearm and possession of an unregistered firearm.

4    The respondent Taha pleaded guilty on 17 December 1999 before her Honour Judge Karpin DCJ to one count of robbery whilst armed with a dangerous weapon identical in terms to that of the respondent Yuksel. He also asked the Court to take into account one offence on a Form 1, viz being carried in a conveyance without the consent of the owner.

5    The maximum penalty for an offence under s 97(2) is imprisonment for twenty five years.

6    On 21 July 2000 the respondents appeared for sentence before his Honour Judge Coorey and were each sentenced to five years imprisonment dating from 23 July 1999 and expiring on 22 July 2004. In each case a non-parole period was set of two years and three months to date from 23 July 1999 and to expire on 22 October 2001.

7    The Notices of Appeal were each signed on 14 August 2000 and served on both respondents on 16 August 2000.

8    In either the late hours of 22 July 1999 or in the early hours of 23 July 1999 the respondents entered the side door of a mixed business at 74 Wellington Road, Auburn. They gained entry to the business by cutting the flyscreen door and opening a lock. There they waited. At about 7am on 23 July the victim Shang Ke Huang opened the door from the residential portion of her house which led into the front of the shop. She said as soon as she opened the door she saw two men standing in front of her.

9    The respondent Yuksel was wearing a black coloured balaclava over his head and was armed with a long barrelled rifle. The respondent Taha was armed with a small knife. One of the men pushed her in the chest forcing her back into her house, that is the residential portion next to the shop, and said, "If you listen we won't hurt you, we want your money and cigarettes".

10    The victim said she did not say anything but remembered screaming. At this point her husband opened the bedroom door to see what was happening. The respondent Yuksel raised the gun and pointed it at him and then kicked him in the groin area. The respondents pushed Shang Ke Huang into the bedroom where her elderly mother was standing near the window crying. One of the men pushed the mother over. Shang Ke Huang’s sister was screaming for help.

11    The respondent's searched the room for valuables and demanded money and boxes of cigarettes. The respondent Yuksel made Shang Ke Huang walk to the shop and fill plastic bags with cigarettes. Whilst the respondent Yuksel was in the shop with her, the respondent Taha remained with the other family members, pointing the firearm at them. The respondent Taha rejoined Yuksel and took possession of the cigarettes. Before leaving the premises the respondents cut the telephone line. Present on the premises at the time, in addition to the family members to whom I have already made reference were four young children.

12    The respondent Yuksel was seen by an independent witness to run from the driveway of the house. At about 10.45am on 23 July 1999 police observed a stolen motor car, registration number BC364, travelling along Homebush Bay Drive, Homebush. The respondent Yuksel was driving the car and the respondent Taha was seated in the front passenger seat. As police approached, the respondent Yuksel swerved the vehicle in their direction, and the police vehicle was forced to mount a median strip to avoid a collision. A police vehicle drove around the front of the respondent's car, and after another collision, the respondent Yuksel stopped the car.

13    Both the respondents were arrested and the vehicle searched. Police located a rifle which was loaded with three rounds, a balaclava wrapped in a black jacket and a small kitchen knife in the vehicle. The respondents were searched and the respondent Yuksel was found to have possession of approximately $450 in fifty dollar notes. The respondent Taha was found to have possession of a .30-30 expended casing in his pocket. The rifle was described by a ballistics expert as a lever action rifle.

14    The motor vehicle registration number BC364 was stolen from Fairfield Railway Station between 5.45am and 4.15pm on 22 July 1999.

15    The respondent Yuksel declined to be interviewed and formally refused an ERISP. He did, however, supply a sample of his blood for analysis.

16    The respondent Taha participated in two ERISP interviews. In the first interview Taha said that he had met the respondent Yuksel at about 9am on the morning of 23 July 1999 and had been offered a lift by Yuksel. He said that they had driven around for some time until the respondent was stopped by police on Homebush Bay Drive. Thus he denied any complicity in the offence.

17    In the second interview, which was conducted at the request of Taha, the respondent admitted to being involved in the offence on the morning of 23 July 1999. He said he had been forced into it by the respondent Yuksel who had pointed the gun to his head. He said that the expended cartridge found in his pocket had come from the rifle that Yuksel had earlier carried.

18    In his Honour's remarks on sentence, he said that he could not be satisfied beyond reasonable doubt that the weapon was loaded at the time of the offence because the respondents were not arrested until three and a half hours after the offence. I shall return to that aspect of the case later in this judgment.

19    I turn then to the subjective features of the respondents. As to the respondent Yuksel, he is the second youngest of six children born in Australia to a family from Turkey. The respondent told Dr Olav Nielssen, forensic psychiatrist who reported on 29 March 2000, that all his siblings were employed and had stable relationships, he being the only one with a drug problem or serious criminal history. He said that his father was a factory worker who now received the old age pension. His mother had also worked in factory jobs. He told Dr Nielssen that his father was very strict and subjected him to extreme physical punishment which included hitting him with a broom stick. He said that these punishments only made him worse. He was expelled from primary school because of fighting. He missed a lot of school before he left school at 15 years of age. He has not undertaken any vocational training since leaving school. His longest period of employment was for about two months.

20    He said that he had spent time in boys homes and had had a number of shorter gaol sentences as an adult before a four year sentence at about the age of 23 years. He was about thirty years of age at the time of sentence.

21    He had a history of drinking alcohol in his early teenage years, and smoking marijuana, excessive consumption of alcohol and abuse of amphetamines and cocaine. During the four years in gaol, to which I have referred earlier, he refrained, it is said, from drug consumption but recommenced upon returning to civil life.

22    Dr Nielssen found no cognitive deficit or evidence of a major psychiatric disorder that would prevent him from responding to a learning based drug rehabilitation program.

23    As to the respondent Taha, he was 22 years of age at the time of the offence. He had no previous convictions for violence. A pre- sentence report referred to the fact that he was the seventh of twelve children who migrated to Australia from Lebanon with his family in 1979 at the age of three years. He experienced a stable and supportive upbringing. However, according to the report, he told the probation officer that at the age of twelve he was sexually assaulted by a stranger, which devastated him and that following this assault his behaviour deteriorated. He said that he became associated with undesirable peers, truanted from school and engaged in drug use and other anti social activities.

24    In 1994 the respondent's parents returned to live in Lebanon with the respondent and his five sisters in order to remove him from negative local influences. The respondent, however, returned to Australia after six months due to difficulty coping with the death of a sister. Following his return to Australia he resumed the use of heroin which he attributes to his unresolved sexual assault and missing his family. However, for two years he lived in stable accommodation with a close friend who provided him with regular employment.

25    He told the Probation and Parole Officer that he commenced the use of heroin in 1994 after several years of marijuana use and developed an addiction, as I have said, following his return from Lebanon. His only attempt to address his addiction was a brief period on a methadone program whilst in custody. He said that he was sick and tired of a drug dependent life style and was anxious to remain drug free in the future. The Probation and Parole officer said that as a result the respondent presented as a man with a serious drug problem which appears to be related to his unresolved sexual assault.

26    Taha's prior criminal record is, however, not as serious as that of Yuksel. Although for present purposes it is not necessary to categorise Yuksel, he must be boarding, one would think, upon categorisation as a recidivist.

27    It is appropriate now to consider certain findings of fact by his Honour which have been challenged by the Crown. Dealing first with the respondent Taha, his Honour (as I read his judgment) accepted that Taha had, "Made a real effort to placate the anxiety of the victims and to reduce their fear at the time of the offence".

28    It is true that there are a couple of brief references in the various statements which were before his Honour that Taha had in fact tried to placate one or more of the victims. However, bearing in mind the rain of terror over which the two respondents presided during the commission of this armed robbery, those statements must have minimal impact upon the degree of criminality exercised by Taha in company with Yuksel.

29    Secondly, his Honour was of the view (as I read his judgment) that the "target" of the offence was a store and not a home. Therefore, this was not a home invasion. It is fair, however, that I quote precisely what his Honour said in that regard. His Honour said:

"The target of the offence was a store and not a home. This was not a home invasion. However, I have to balance against that the fact that this was a place where the family was living and it is not difficult to imagine the terror that must have been instilled in the minds of the family".

With all due respect to his Honour, it is obvious from what I have already said with regard to the uncontested facts before the sentencing judge that this clearly was a home invasion and, indeed, much of the threatened violence actually took place in the bedroom of the home.

30    This was a significant finding for his Honour because it is accepted that there is an additional element of venality associated with a home invasion. In this case the victim's home was attached directly to their small business and it was by reason of this fact that there were eight people, of whom four were children, who were terrorised by the respondents. This offence must be categorised as a home invasion as that concept is generally understood in this area of criminal conduct. It was also, of course, an invasion of the commercial premises.

31    Next his Honour, as I have indicated, held that he could not be satisfied beyond reasonable doubt that the weapon was loaded at the time of the offence because the offenders were not arrested until three and a half hours after the offence. His Honour said that although he had a grave suspicion that the weapon was loaded, he necessarily had a doubt because of the time gap between the offence and the arrest.

32    I note that neither respondent gave evidence or made a statement to the police to the effect that at the relevant time, that is to say at the time of the robbery, the weapon was not loaded. In my view, the evidence pointed clearly to the conclusion that the weapon was in fact loaded at the time of the actual robbery. This is a classic case of the application of the principle of the retrospective operation of the presumption of continuance.

33 A classic example of that principle is is Beresford v Justices of St Albans (1905-1906) 22 T.L.R. 1. In that case the defendant was charged with driving a motor car at an excessive speed. The car was stopped four miles out of town, when the defendant was found to be driving the vehicle, having a chauffeur with him.

34    It was held that there was some evidence that the defendant had been driving the whole distance, it being significant that the defendant did not give evidence.

35 The principle has been discussed by this Court in Regina v Olejarnik (1994) 33 NSWLR 567 at 572 to 573. Consideration should also be given to the cases there referred to.

36    His Honour then went on to hold (as I read his judgment) that there were no threats or physical abuse of the victims. This finding of fact is insupportable as certain brief, but by no means exhaustive, references to the statements of certain of the victims make clear. One victim stated:

"Because I was crying near the window one of the men came up to me and pulled me from behind and pushed me to the ground."

Another stated:

"He pointed the gun at my husband and he kicked my husband".

Another stated:

"The man with the gun pointed it to the middle of my head. He said 'go out of the room'."

Another stated:

"I tried twice to look out the room to see my wife but the man with the knife stopped me."

37 These are findings of fact which, by reference to the principles of House v The King (1936) 55 CLR 499 are so insupportable as to justify the intervention of this Court.

38    In the case of Taha, his Honour specifically referred to the respondent's drug addiction and concluded that his motive in committing the crime was to obtain money to satisfy his addiction.

39    His Honour that the offence was a joint enterprise and rejected a submission that Taha should receive a lighter sentence than Yuksel. He considered that there could be a justifiable sense of grievance if he were to differentiate in the sentences imposed upon the two offenders.

40    From a subjective point of view, his Honour noted with regard to Yuksel that this was the first occasion on which he committed an offence involving a firearm.

41 After referring to the guideline judgment of Regina v Henry and Ors. (1999) 46 NSWLR 346, his Honour considered that he was required to impose an overall sentence of five years on each respondent and, as already indicated, his Honour set a non parole period in each case of two years and three months.

42 The Crown has correctly pointed out that his Honour failed to recognise that Henry's case provides guidelines for the offence of armed robbery under s 97(1) of the Crimes Act and, it might be said, for the cognate offence of robbery in company where, in each case, the maximum penalty is twenty years imprisonment, which is five years less than the maximum period of imprisonment in respect of the subject offence under section 97(2).

43    In their written submissions the Crown pointed out that the characteristics which constitute the basis for the Henry guidelines, were, in the main, to be distinguished from the relevant characteristics in this matter. The Crown also appropriately pointed out that in Henry (at paragraph 109) Spigelman CJ noted, as a consequence of what he described as a "pattern of leniency", that over sixty percent of those who were imprisoned received a minimum or fixed term of two years or less. In this context it will be noted that each minimum term imposed in the subject case was barely more than two years.

44 It is well established that the minimum term or non parole period must reflect the objective gravity of the offence, as well as the total term. See, for example, Regina v Morrissey (CCA, unreported, 15 July 1994) and Regina v Doorey [2000] NSWCCA 456.

45 We have had the benefit of helpful submissions by Mr Toner SC on behalf of the respondent Taha and Miss Manuell on behalf of the respondent Yuksel and they have drawn our attention to the judgments of this court in Silver (1999) NSWCCA, 108) and Tran (1999) NSWCCA 109.

46    One, of course, only gets limited assisted by reference to other cases. This is because there are so many different factors which operate, from a subjective and an objective point of view, from case to case. As indeed, one can only obtain limited assistance by reference to the Judicial Commission statistics which are relied upon so often in this Court.

47    Both counsel for the respondents accept that the sentences imposed by his Honour were, in each case, at the lower end of the range, but submit that they were within the range and do not attract the intervention of this court.

48    In my view, the erroneous factual findings and errors of law made by his Honour, regrettably led him to the imposition of sentences in this matter which are indeed manifestly inadequate and call for the intervention of this Court.

49    The offence of aggravated armed robbery is, by its very nature, a serious offence and the subject case is a particularly serious example of the offence.

50    The objective facts disclose a very high degree of criminality on the part of both offenders.

51    It may be thought, and I express no concluded view about this, that Yuksel was the more active participant in this joint enterprise, but Taha must accept that when he engaged in this joint criminal exercise, he did so in the context that it is not the practice of the courts to analyse minutely the particular role which each offender played. Here each was responsible for the acts of the other.

52    The presence of the knife and the loaded rifle made this a particularly serious matter. There are, however, differences in their subjective circumstances, to which I have adverted.

53    The respondent Yuksel is now thirty years of age with an appalling criminal record commencing in 1987 and containing numerous custodial sentences for offences of a diverse nature. Perhaps the only mitigating factor is that he has no previous sentences in relation to armed robbery.

54    It is, in his case, necessary to take into account the four serious matters on the Form 1. He is entitled to the benefit flowing from an early plea of guilty. He is also entitled to the considerations flowing from the double jeopardy principle associated with a Crown appeal. However, bearing in mind the evidence available to the Crown, and in particular the fingerprint evidence, the plea of guilty is predominantly of a utilitarian value. The same can be said in relation to the plea of guilty by the respondent Taha.

55    Some distinction must, however, be drawn between the two respondents in sentencing. Balancing the objective and subjective factors, I would propose that in the respondent Yuksel's case the appeal be allowed and the sentences imposed by Coorey DCJ be quashed.

56    In lieu thereof I would propose that the respondent Yuksel be sentenced to an overall term of seven years imprisonment dating from 23 July 1999 and expiring on 22 July 2006, with a non-parole period of five years and three months to expire on 22 October 2004, when the respondent Yuksel will be eligible to apply for parole. I do not think that there is a case for special circumstances.

57    In the case of the respondent Taha, who is presently twenty four years of age, he has only one matter on a Form 1, that is to say, being carried in a conveyance without the consent of the owner. His record is not as bad as that of Yuksel, albeit he was on parole at the time of the present offence. He had, at the time of sentence, a serious drug problem which was probably associated with the commission of the offence. To what extent we will never know.

58    In my view, he requires an extended period of supervision upon release from custody and to that extent there are special circumstances.

59    In Taha's case I would propose that the appeal be allowed and that the sentence imposed by Coorey DCJ be set aside. In lieu thereof I would propose that Taha be sentenced to a period of six years imprisonment by way of an overall sentence, that is to say, from 23 July 1999 to 22 July 2005, with a non-parole period of four years dating from 23 July 1999 and expiring on 22 July 2003 when he will be eligible to apply for parole.

60    MEAGHER JA: I agree.

61    HIDDEN J: I would dismiss this appeal. As I am aware that I am in the minority, I shall give my reasons very briefly.

62    Turning first to the challenges to his Honour's finding of fact, his Honour's reference to the absence of threats or physical abuse of the victims, read in context, was no more than recording a submission made by counsel. His Honour appears to have made no finding about that submission.

63    Similarly, his Honour's saying that the target of the offence was a store and not a home and this was not a home invasion was also recording a submission made by counsel, as I read the remarks. His Honour then went on to say:

“However, I have to balance against that the fact that this was a place where the family was living and it is not difficult to imagine the terror that must have been instilled in the minds of the family".

As I read his Honour's response to that submission, his Honour is saying, in effect, that this was not conceived as a home invasion but effectively it became one.

64    It was certainly open to his Honour on the evidence to conclude that the weapon was loaded at the time of the robbery but I am unable, in this appeal, to find that his Honour fell into error in declining so to conclude.

65    It was also open to his Honour to have distinguished between the two respondents when passing sentence but again, in all the circumstances, I do not consider that his Honour fell into error in determining that the appropriate cause was to pass the same sentence on each man.

66    That sentence was undoubtedly lenient, given the seriousness of the offence which has been eloquently described by Carruthers AJ in his judgment, and also given the fact that neither man could call on his antecedents in any claim for leniency. Nevertheless, it does not strike me as so lenient as to be fairly described as manifestly inadequate: cf Silver (1999) NSW CCA 108.

67    MEAGHER JA: The orders of the Court therefore will be the orders proposed by Carruthers AJ.

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