SAKIN v The State of Western Australia

[2021] WASCA 216

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   SAKIN -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 216

CORAM:   BUSS P

HEARD:   13 DECEMBER 2021

DELIVERED          :   13 DECEMBER 2021

FILE NO/S:   CACR 181 of 2021

BETWEEN:   AYKUT ALI SAKIN

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   TROY DCJ

File Number            :   IND 726 of 2020

Catchwords:

Criminal law - Appeal against sentence - Application for bail - Whether exceptional reasons why the appellant should not be kept in custody pending the determination of the appeal

Legislation:

Bail Act 1982 (WA)
Criminal Appeals Act 2004 (WA), s 31(3), s 31(4)
Criminal Code (WA), s 317(1)

Result:

Application for bail dismissed

Category:    B

Representation:

Counsel:

Appellant	:	Ms Z M Burgess
Respondent	:	Mr S D Packham

Solicitors:

Appellant	:	Burgess Criminal Lawyers
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Castrilli v The State of Western Australia [2019] WASCA 135

Serukai v The State of Western Australia [2020] WASCA 127

Spirovski v The State of Western Australia [2017] WASCA 230

BUSS P:

1The appellant was charged with two other offenders on an amended indictment dated 19 November 2021 with one count, alleging that on 24 March 2019, at Canning Vale, the appellant unlawfully assaulted Rohan Toner and thereby did him bodily harm, contrary to s 317(1) of the Criminal Code (WA) (the Code).

2The other two offenders, Lee Te Hiwirangi Heta and Jason Edward Karaka Simpson, were each also charged with one count of unlawful assault causing bodily harm, contrary to s 317(1), occurring on the same date and at the same place. It was alleged that Mr Heta assaulted John Patrick McCullough and Mr Simpson assaulted Carl Brian Whyte.

3The maximum penalty for the offence is 5 years' imprisonment.

4The matter was listed for an eight day trial, but on 22 November 2021, after what the State prosecutor described as 'lengthy but productive negotiations' (ts 29), the charges on the indictment in relation to the appellant and Mr Heta were amended and consequently each of the offenders entered a plea of guilty (ts 29 ‑ 32).  Initially, the appellant and Mr Heta were charged with unlawfully doing grievous bodily harm.

5On 29 November 2021, Troy DCJ sentenced the appellant and Mr Heta to 9 months' immediate imprisonment.  A parole eligibility order was made.  By contrast, Mr Simpson was sentenced to 9 months' imprisonment, suspended for 18 months (ts 99).  Each of the sentences began on 29 November 2021.  The appellant’s earliest release date is 13 April 2022.

6The appellant has appealed against sentence.  The appellant has two draft grounds of appeal, provided in a minute of proposed grounds of appeal filed on 6 December 2021.  Ground 1 alleges that the primary judge erred in law by imposing a sentence that was manifestly excessive as to type.  Ground 2 alleges that his Honour erred in law by incorrectly applying the parity principle between the appellant and Mr Simpson.

7On 1 December 2021, the appellant filed an application in the appeal for bail pending the hearing of his appeal or, in the alternative, an urgent appeal order.

8On 2 December 2021, I granted the application for an urgent appeal order.  The appeal is listed for hearing on 9 February 2022.

9The State opposes the application for bail.

10I have decided, for the following reasons, that the application for bail should be dismissed.

Facts prior to the offending: the context of the assaults

11The facts prior to the offending provide context. The primary judge said that those facts were 'neutral within the sentencing exercise' (ts 92).  His Honour also said that while it was established that prior to the assaults 'some manner of protracted conflict' had occurred, the available evidence '[was] not capable of establishing to the requisite standard who initiated [the conflict], nor the precise acts which comprise that altercation' (ts 91). The facts prior to the assaults were not mitigating or aggravating (ts 92). 

12On 23 March 2019, Mr Toner, Mr McCullough and Mr Whyte (collectively, the complainants) were at a mutual friend's residence in Bakers Hill. The complainants left at around 10 pm in a Toyota Prado, which Mr Toner was driving.  They had each consumed varying amounts of alcohol (ts 33).

13On the same day, the appellant, Mr Heta and Mr Simpson, along with several other associates, were at a mutual friend’s residence in York.  They left at around 10 pm (ts 33).  Mr Heta and the appellant left in a Toyota Landcruiser with their two female partners, one of whom was driving (ts 34).  Mr Simpson left driving a Ford Ranger utility with one passenger, Aydin Gok.  Two other offenders who have not been positively identified left together in a Toyota Hilux (ts 34).

14The Prado containing the complainants and the Landcruiser containing the appellant and Mr Heta were travelling along Great Eastern Highway at around the same time and arrived at the intersection of Great Eastern Highway and Roe Highway at around the same time.  The Ranger driven by Mr Simpson was some distance behind those vehicles. An altercation involving the Prado and the Landcruiser began and continued as they were driven onto Roe Highway heading south (ts 34).

15At some stage, Mr Gok spoke to one of the occupants of the Landcruiser by telephone.  Following this, the Ranger and the Hilux drove up to the Landcruiser and the Prado and became involved in the altercation. During the altercation, which lasted for about 20 minutes, beer bottles were thrown at the Prado by unknown occupants of either or all of the Landcruiser, the Ranger and the Hilux.

16The Prado was damaged and this caused warning lights to be displayed on the dashboard (ts 34).  Mr Toner drove the Prado into a nearby shopping precinct car park to avoid the vehicle overheating (ts 34).  The Landcruiser, the Ranger and the Hilux followed the Prado into the car park.  All eight occupants, including the appellant, Mr Heta and Mr Simpson, approached the complainants (ts 35).  The appellant, Mr Heta and Mr Simpson then each assaulted one of the three complainants.

17The appellant’s offending, but not the other offending, was captured on CCTV footage (ts 93).

18Following the assaults, one of the complainants, Mr Whyte, called Emergency Services to assist Mr Toner and Mr McCullough who were both unconscious.  Ambulances attended and all three complainants were taken to hospital.

19Police also attended and arrested the appellant and Mr Heta who had voluntarily returned to the scene shortly after leaving (ts 36).  Mr Simpson was arrested a short time later.  The appellant and the two other offenders participated in electronically recorded interviews with police on the night of their arrest, where they each admitted having been involved in the assaults and the details of their offending.

The appellant’s offending and Mr Toner’s injuries

20The appellant’s offending was as follows.  The appellant walked up to Mr Toner who was standing by the driver’s side of the Prado.  Mr Toner's open hands were by his side.  The appellant stood in front of Mr Toner for a moment before punching him twice to the head. Mr Toner lost consciousness and fell to the ground.

21Mr Toner was later taken to Royal Perth Hospital where he was diagnosed with the following injuries:

(a)a subdural hematoma which resolved without surgical intervention;

(b)a deep laceration to the left side of his face near the base of his nose which required suturing;

(c)a scalp laceration which required suturing;

(d)the exacerbation of a pre-existing shoulder injury which resulted in ongoing pain and discomfort; and

(e)bruising to his left ear which also resulted in pain and discomfort.

22None of the injuries sustained by Mr Toner were of such a nature as to endanger or be likely to endanger life or to be likely to cause permanent injury to health. However, they were injuries that required hospitalisation for several days and caused significant pain and discomfort.

Mr Simpson’s offending and Mr Whyte's injuries

23Mr Simpson’s offending was as follows.  Mr Simpson approached Mr Whyte who was standing at the passenger side of the Prado.  Mr Simpson punched Mr Whyte twice to the head.  Mr Gok (who was ultimately not charged) ran in and grabbed Mr Whyte by the shirtfront and forcefully pushed him, causing Mr Whyte to stumble and fall to his knees.  Mr Simpson and Mr Gok then returned to the Ranger and left the scene (ts 94).

24As a result of that assault, Mr Whyte sustained abrasions to his right elbow, forehead and cheek, which interfered with his health and comfort.

Common sentencing factors

25There were a number of sentencing factors that were common to the offenders.

26The offenders’ conduct was aggravated by the fact that:

(a)although they were to be sentenced for their individual offence against an individual complainant, they were part of a group of eight as opposed to the complainants who were part of a group of three (ts 92); and

(b)regardless of how the altercation started, the offences were 'entirely avoidable' (ts 92); in particular, there were numerous opportunities to de-escalate the conflict and there was no need for the offenders to follow the Prado into the car park (ts 92).

27Further, the seriousness of the offences was also informed by the fact that the offending occurred in a public place and the fact that the degree of violence used, and its persistence, were demonstrative of a significant level of force (ts 96).  However, on the other hand, the offending was made less serious by the fact that it was not pre-planned or 'wholly gratuitous', but rather was a response to something that happened on the road (ts 95 ‑ 96).

28The following points mitigated the sentence that each offender received:

(a)Each of the offenders did not have criminal records and had not offended in any way since the incident, which occurred more than two and a half years before sentencing (ts 97).

(b)Each of the offenders had comprehensive references and were of 'excellent character' (ts 97).  Each of the offenders had a good work ethic and were either employed or had excellent prospects of employment (ts 98).  Therefore, there was a minimal risk of re-offending and personal deterrence was not a necessary consideration in sentencing (ts 97).

(c)Each of the offenders cooperated with the police by making admissions in their interviews (ts 96). 

(d)Each of the offenders was remorseful (ts 97). 

(e)Each of the offenders had relative youth as a mitigating factor.

Different sentencing factors

29The difference in the sentences received by the appellant, on one hand, and Mr Simpson, on the other, was largely the result of the difference in the degree of severity of the injuries they each inflicted.  The primary judge stated that the appellant’s offending (as well as Mr Heta's) constituted a very serious example of assault occasioning bodily harm and the injuries sustained were towards the 'higher end' of the scale of seriousness of what might constitute bodily harm (ts 99).  For this reason, his Honour found that a suspended or conditionally suspended sentence of imprisonment was not appropriate (ts 99 ‑ 100).  The considerable mitigation went to the length but not the type of sentence (ts 99).  General deterrence was an important sentencing consideration (ts 97).

30Below is a table summarising other key points of the offending:

Appellant	Mr Simpson	Mr Heta
Sentence	9 months’ immediate imprisonment	9 months' imprisonment suspended for 18 months	9 months’ immediate imprisonment
Age at time of offending	23	25 (almost 26)	20
Discount for plea	25%	15%	15%
Remorseful	Yes, ‘perhaps’ the most	Yes	Yes
Good character	Yes	Yes	Yes
Co-operation with police	Yes, returned to the scene voluntarily	Yes	Yes, returned to the scene voluntarily and provided the largest amount of co-operation
Initiated the violence	Yes	No	No
Complainant fought back	No	No	Yes
Inflicted serious injuries	Yes	No	Yes
Victim was vulnerable	Yes	Yes	Yes, victim most intoxicated

31In more detail, the following facts aggravated the appellant’s offending by comparison to Mr Simpson’s offending:

(a)The primary judge found that the appellant started the violence.  His Honour rejected submissions by the appellant that, prior to the appellant’s assault, Mr Toner had raised a bottle of Jack Daniels over his head or that the appellant may have believed Mr Toner had raised a bottle over his head.  His Honour found that the CCTV footage showed clearly that Mr Toner did not have a bottle or raise anything (ts 93).  Rather, his hands were outstretched by his side 'in a plainly passive gesture' (ts 95).  By contrast, Mr Simpson was the last person out of his car upon arriving and the first to leave the scene (ts 71).

(b)The primary judge found that the immediacy of the appellant's actions proved 'the intention of striking the nearest person to [the appellant] in order to punish that person for his actions, or the actions of his group' (ts 93).  The appellant got out of the car almost as soon as it stopped, moved purposefully towards Mr Toner, and then almost immediately forcefully struck Mr Toner.  By contrast, no such finding was made about Mr Simpson.

(c)The primary judge noted that the appellant's offending constituted a very serious example of assault occasioning bodily harm and that the injuries Mr Toner sustained were at the 'higher end' of the scale of seriousness of what might constitute bodily harm (ts 99).  Mr Toner was unconscious for some 17 minutes and 'could easily have died' (ts 95).  By contrast, Mr Simpson had inflicted only minor injuries.

32The appellant received a 25% discount for his plea of guilty.  Mr Simpson received a 15% discount for his plea (ts 96).   Beyond this, there was modest distinction between the findings the primary judge made in relation to the mitigating factors of the appellant and Mr Simpson.  The relevant distinctions included:

(a)While all of the offenders were found to be remorseful (ts 97), the primary judge stated that the appellant had 'perhaps demonstrated the greatest degree of remorse' (ts 98).  This statement seems to have been based on the fact that the appellant returned to the scene voluntarily a short time after leaving (ts 95) and the appellant asked in his electronically recorded interview how the victim was faring (ts 97). 

(b)While all of the offenders were found to have youth as a mitigating factor, the appellant was aged 23 at the time of offending and was younger than Mr Simpson who was aged 25, nearly 26.  The primary judge noted that Mr Simpson was at the 'outer realms of where age is a mitigating factor' (ts 97).

(c)All of the offenders were found to be of 'excellent character' (ts 97).  However, the appellant provided 15 character references or support letters, whereas Mr Simpson provided only three.  The appellant's references were 'particularly' comprehensive (ts 97).

33The primary judge also noted that the appellant drew positively from his experience to act as a mentor within his community and had conversations with other young men about the dangers of escalating violence (ts 63, 98).  The appellant does not drink because of his religion, so there was no risk of alcohol fuelling a similar situation (ts 98).  No similar statements were made about Mr Simpson.

34The proposed ground of appeal relating to the parity principle alleges an incorrect application of the principle between the appellant and Mr Simpson.  It is therefore unnecessary to consider the sentencing factors relevant to Mr Heta.

The merits of the application for bail

35The principles relating to the granting of bail pending the determination of an appeal are well established.  See, for example, Serukai v The State of Western Australia.[1]

[1] Serukai v The State of Western Australia [2020] WASCA 127 [12] ‑ [15].

36In the present case, I will deal with the application for bail by considering whether the appellant has a strongly arguable case that a different sentence should have been imposed. See s 31(3) read with s 31(4) of the Criminal Appeals Act 2004 (WA).

37I have considered the material relied upon by the appellant in support of his application for bail, including his written submissions on the application and the affidavit of his lawyer, Ms Burgess, sworn 1 December 2021.  I have also taken into account the oral submissions made by counsel for the appellant today.

38I am not satisfied, at this stage, that the merits of the appellant's appeal, including whether a different sentence should have been imposed, are of sufficient strength to justify a grant of bail.

39As to proposed ground 1, I have had regard to the sentencing pattern disclosed by previous decisions of this court with some features comparable to the appellant and his offending, including the cases cited by counsel for the appellant and counsel for the State.  See, in particular, Spirovski v The State of Western Australia;[2] and Castrilli v The State of Western Australia.[3]  I have also taken into account a number of other matters including the maximum penalty for the offence, the objective seriousness of the appellant's offending, as explained by the primary judge, and the significant mitigating factors (including the appellant's personal circumstances) mentioned by his Honour.

[2] Spirovski v The State of Western Australia [2017] WASCA 230.

[3] Castrilli v The State of Western Australia [2019] WASCA 135.

40As to proposed ground 2, I have had regard to the similarities and the differences between the appellant's offending and his personal circumstances, on the one hand, and Mr Simpson's offending and his personal circumstances, on the other.

41In all the circumstances, I am not satisfied that there are exceptional reasons why the appellant should not be kept in custody pending the determination of his appeal.

42The appellant's application for bail must therefore be dismissed.

43However, as I have mentioned, on 2 December 2021, I made an urgent appeal order.  I made the order because a relatively short period of immediate imprisonment (namely 9 months' immediate imprisonment) was imposed on the appellant and he was made eligible for parole.  The appeal will be heard on 9 February 2022.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

TW

Associate to the Honourable President Buss

14 DECEMBER 2021