Taskiran v The Queen
[2011] VSCA 358
•14 November 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0302
| DENIZ TASKIRAN | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
S APCR 2010 0322
| JOSEPH NABALARUA | Appellant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | WARREN CJ and HANSEN JA | ||
WHERE HELD: | MELBOURNE | ||
DATE OF HEARING: | 14 November 2011 | ||
DATE OF JUDGMENT: | 14 November 2011 | ||
MEDIUM NEUTRAL CITATION: | [2011] VSCA 358 | ||
JUDGMENT APPEALED FROM: | R v Taskiran; R v Nabalarua; (Unreported, County Court of Victoria, Judge Jenkins, 27 August 2010) | ||
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CRIMINAL LAW – Sentence – Intentionally causing serious injury – Repeated attacks against defenceless victim – Attack began as vigilantism – First appellant sentenced to eight and a half years’ imprisonment with non-parole period of six and a half years – Second appellant sentenced to seven years’ imprisonment with non-parole period of five years – Whether sentences manifestly excessive – Youthful offenders – Strong prospects of rehabilitation – Non-parole periods manifestly excessive – Appeals allowed – Head sentences unchanged – First appellant’s non-parole period reduced to five and a half years – Second appellant’s non-parole period reduced to four years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant Taskiran | Mr D A Dann | Randles Cooper and Co |
| For the Appellant Nabalarua | Mr P Tiwana | James Dowsley and Associates |
| For the Respondent | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
WARREN CJ:
Both appellants have pleaded guilty and been sentenced in respect of one count of intentionally causing serious injury. The offence was committed by each appellant against the same victim in the same circumstances. For that offence, the first appellant, Deniz Taskiran, received a sentence of eight years and six months’ imprisonment, with a non-parole period of six years and six months’ imprisonment. The second appellant, Joseph Nabalarua, received a sentence of seven years’ imprisonment, with a non-parole period of five years’ imprisonment. Both appellants appeal their sentence on the basis that it was manifestly excessive and that the difference between the non-parole periods imposed upon them and their head sentences was too narrow.
The circumstances of the offending
On the night of 15 September 2009, Mr Taskiran’s mother, Ms Demiral, saw the victim, Harold Noyaux, breaking into Mr Taskiran’s car outside her unit in Hallam. She telephoned Mr Taskiran, who was leaving his girlfriend’s house in Noble Park. He drove his girlfriend’s car to the area of his mother’s unit, whilst Ms Demiral continued to follow the victim on foot. By the time he arrived, Mr Noyaux had left the scene but Mr Taskiran observed him near the corner of Harmer Road and Princes Highway, about 500-600 metres from his mother’s unit.
At this time, Mr Nabalarua was at home, sitting with his sisters and brother watching television. His house was on the corner of Harmer Road and the Princes Highway. He was not known to his co-offender, Mr Taskiran, except by sight, and then only as neighbours. Mr Nabalarua heard a car screeching outside his house. His brother told him that he believed he saw someone in the driveway. He ran outside. Mr Nabalarua saw Mr Taskiran come to a sudden stop with the victim in front of his car and formed the view that he was trying to run over Mr Noyaux. Mr Nabalarua asked Mr Taskiran what he was doing. Mr Taskiran told him that Mr Noyaux had tried to break into his house. Mr Nabalarua chased Mr Noyaux on foot south across the Princes Highway into an industrial area, whilst Mr Taskiran followed in his vehicle. All three men arrived in a car park outside the ‘Nitro Gym’. This area was covered by closed circuit television cameras and their arrival was recorded.
At 11.03 pm, the CCTV footage shows Mr Noyaux running east along the car park, being chased by Mr Nabalarua. A small white vehicle is then seen to stop on the service lane outside the building. Mr Taskiran gets out of that vehicle and blocks Mr Noyaux’s path. Both Mr Nabalarua and Mr Taskiran then punch and kick Mr Noyaux, causing him to fall to the ground, apparently unconscious.
Mr Nabalarua admitted punching Mr Noyaux in the head. He also admitted to stomping on his head to ‘teach him a lesson’. Mr Taskiran admitted to arming himself with a tyre lever/wheel brace from the boot of his girlfriend’s car and hitting Mr Noyaux with it. Mr Taskiran then looked through Mr Noyaux’s bag and removed his stolen property.
At 11.05 pm, the assault ended. Mr Taskiran left the scene in his girlfriend’s car, whilst Mr Nabalarua left the scene on foot. Their victim appeared to be semi-conscious.
During the early part of this assault, it appeared from the security footage that another person was present, but did not take part in attacking Mr Noyaux. Furthermore, a light-coloured station wagon pulled into the area where the assault occurred. A person alighted from that vehicle, but also did not participate in the assault, and the vehicle left shortly thereafter.
A few minutes later, at 11.08 pm, the CCTV footage shows Mr Taskiran returned to the scene with his mother in a car. They walked over to where Mr Noyaux was lying on the ground. Ms Demiral apparently confirmed that Mr Noyaux was the man she had witnessed breaking into the car and Mr Taskiran then hit the victim again and also kicked him in the face. At 11.09 pm, both of them left in the same vehicle, leaving Mr Noyaux at the scene.
At 11.14 pm, the CCTV footage again shows Mr Taskiran returned to the scene in his girlfriend’s car and approached Mr Noyaux, who was lying on the ground. Mr Nabalarua also returned on foot armed with a bottle. Both appellants continued to assault Mr Noyaux.
During this third assault, Mr Taskiran admitted to kicking Mr Noyaux a number of times. Mr Nabalarua, who was attacking the victim for a second time, admitted to hitting and kicking Mr Noyaux, stomping on him and hitting him in the head with the bottle he was carrying.
Both Mr Taskiran and Mr Nabalarua remained in the area intermittently assaulting Mr Noyaux until 11.23 pm. At that time, a third person arrived and spoke to Mr Taskiran. Mr Taskiran and that individual each took hold of Mr Noyaux’s legs and dragged him from the car park over a concrete gutter and a grassed area and placed him under some low bushes. As Mr Noyaux was being dragged, his head struck the kerbing heavily. He was left unconscious under the bushes and all men left the scene.
About one hour later, Mr Nabalarua attended upon a nearby emergency veterinary clinic and reported to the person on duty that there was a man outside who was dying and that the police should be called. The police subsequently attended. At 00.46 am on 16 September 2009, the first police and an ambulance attended on the scene. Other emergency services arrived shortly thereafter. Mr Noyaux was taken to hospital and admitted to the Intensive Care Unit where he remained for five days. After being discharged from that unit, he spent more time in hospital being rehabilitated.
On admission, Mr Noyaux was found to be unconscious, intubated and ventilated, with multiple facial swelling and bruising. An urgent CT scan indicated that Mr Noyaux was suffering from bilateral subdural haematomas and multiple fractures of his nasal bones. He was immediately taken to an operating theatre, where a left subdural haematoma was drained and a craniotomy was performed, including the insertion of a drain. The consultant neurosurgeon who examined him upon admission observed:
These findings were consistent with severe head injury following multiple blunt trauma to the head, resulting in bilateral subdural haematomas and fractured nasal bones. Life-threatening injury without surgery would be lethal.
Mr Noyaux sustained severe head injuries and an acquired brain injury. Medical evidence indicated that the assault had rendered him subject to extreme changes in mood and an inability to express shades of emotion, as well as severely damaging his sight. A general practitioner, Dr Kozminsky, who examined Mr Noyaux, opined that:
Due to his acquired brain injury, he has a high potential for becoming the victim of further assaults. He requires his mother or another carer to be with him at all times to act as both memory and to prevent impulsive actions, such as crossing the road without looking … It is likely that he will never be able to live independently again.
Victim impact statements from Mr Noyaux, his sister and his mother, who acts as his full-time carer since the assault, testify to the traumatic and lasting effects of this attack on both the victim and his family. In particular, it appears to have completely subsumed the life of his elderly mother, who was 77 years old at the time the appellants were sentenced.
Personal circumstances of the appellants
Both appellants were arrested on 20 September 2009 and were frank and co-operative with police. They both pleaded guilty at the earliest opportunity and were released on bail in early December 2009.
Mr Nabalarua did not have any prior convictions. Mr Taskiran had three relevant prior appearances in the Children’s Court. The first of these was for robbery, intentionally/recklessly causing injury and driving offences, for which he was placed on probation for six months and ordered to undertake anger management programs without conviction. The second of these was for common law affray and recklessly causing serious injury, for which he was sentenced to three months’ detention in a Youth Justice Centre, which was reduced on appeal to a six month Youth Supervision Order without conviction. The third of these was for driving charges and breaching an intervention order, for which he was released without conviction on a good behaviour bond for six months.
Mr Taskiran is of Turkish origin and was born in Germany. He was 19 years of age at the time of being sentenced and 18 years of age when the assaults took place. His parents’ relationship was violent and resulted in an unsettled period during which Mr Taskiran’s mother spent time in various women’s refuges. Mr Taskiran attended various schools until he was in the middle of Year 10, when he completed six months of a TAFE carpentry course. Otherwise, he performed deliveries for his father and some casual concreting. He stated that he aspired to complete a real estate course at TAFE. Whilst in custody, but prior to being sentenced, Mr Taskiran completed anger management and workplace safety courses and whilst on bail attended upon two psychologists for the purposes of addressing anger management. Mr Taskiran had no history of drug or alcohol abuse.
Mr Nabalarua was 20 years of age at the time of being sentenced and 19 years old at the time of the attack. His parents were born in Fiji and had a happy and stable relationship. Both he and his family were involved in the local Pentecostal church. He was raised in Hallam, where he lived with his parents and three younger siblings. Mr Nabalarua was subject to strict discipline growing up, which included physical punishment. At school, he excelled in sport, particularly Rugby Union, and was popular with both teachers and peers, but achieved average academic results. After leaving Year 12, he worked intermittently for his uncle’s rendering business and, whilst on bail, at a company known as Hinkler Books. He had no history of drug or alcohol abuse.
Mr Nabalarua expressed remorse and insight into his criminal behaviour and was assessed as having good prospects for rehabilitation. This included writing a letter of apology to Mr Noyaux. In many ways, his decision to participate in such a serious assault lacked explanation, although it was noted that he made comments about the normalcy of dealing with problems through violence during counselling sessions. He attributed these beliefs to his culture and his position as the eldest son in his family. Nevertheless, Mr Nabalarua struggled with some of the rehabilitative programs related to violence which he was required to complete whilst released on bail and was assessed as requiring ‘significant anger management intervention in relation to addressing his offending behaviour.’
Manifest excess
Both appellants argue that their sentence is manifestly excessive having regard to their personal circumstances.
The attack perpetrated by the appellants was properly described by the sentencing judge as ‘a sickening display of a relentless and savage beating … over a prolonged period’ and a ‘grave and … extreme example of serious violent offending’. No proper explanation has been given as to why either of the appellants decided to act in the manner in which they did. Both appellants spoke of punishing Mr Noyaux for what he had done. Of course, this Court has always decried any form of vigilante justice as both unacceptable in and of itself, but also as a direct challenge to the authority of the law and the rule of law.[1] This case, in many respects, went beyond that.
[1]See, for example, Whiteside & Dieber (2000) 1 VR 331, 336-337 (Winneke P), 339 (Brooking JA).
In cases such as this, it has been said by the courts that, ‘youth and rehabilitation must … take a “back seat” to specific and general deterrence’[2], as well as denunciation and the need to vindicate the values of the community.
[2]Director of Public Prosecutions v Lawrence (2004) 10 VR 125, 132 (Batt JA, Winneke P and Nettle JA agreeing concurring).
The starting point, more often than not, with respect to the treatment of young offenders lies in the statements of this Court in R v Mills[3] and R v GAS.[4] Subsequently, there have been occasions where this Court has looked at particularly bad forms of offending and addressed the question as to how youth is to be approached in such circumstances. It is clear from the authorities that the weight to be attached to youth will be reduced but, in the usual circumstance, not be replaced entirely. It will be a matter for each court, when dealing with sentencing young offenders, to address the gravity of the offending and then, in the course of the sentencing synthesis, taking account of the mitigating circumstances and all other relevant matters, to weigh up the extent to which the topic of youth should be reduced. It is unlikely that youth will ever be totally displaced as a sentencing factor to be taken into account, in light of the principles expressed in Mills and GAS. In other words, youth will not be a factor to be extinguished.
[3](1998) 4 VR 235, 241 (Batt JA, Phillips CJ and Charles JA concurring) (‘Mills’).
[4][2002] VSCA 131, [65] (Phillips CJ, Chernov and Vincent JJA) (‘GAS’).
In her Honour’s reasons for judgment, she gave consideration to the way in which youth should be approached. First of all, her Honour, set out the submissions made by the prosecution.[5] This included the prosecutor’s submission that ‘in such a case, youth and rehabilitation are overwhelmed by these other sentencing principles’[6]. It is not clear whether her Honour was merely reciting this submission or accepting it. It may be that her Honour was simply restating the submissions provided by the prosecution, although, as I say, it is not entirely clear. Her Honour, in the course of noting the submissions of the prosecution, made reference to the authorities of R v Wright[7] and R v Chong[8]. However, this was at the beginning of her Honour’s reasoning with respect to the factor of youth.
[5]At [98].
[6]Being denunciation and specific and general deterrence.
[7] [1998] VSCA 94 [6].
[8] [2008] VSCA 119.
Further on in her Honour’s reasons,[9] her Honour specifically addressed Mills and GAS. Her Honour noted that the factors of youth and rehabilitation are important and that they will constitute some of the matters to be taken into account. However, her Honour then went on to state:
There are occasions on which they must give way to the achievement of other objectives of the sentencing law. In my view, this is such a case.
[9] At [122].
It is not entirely clear from her Honour’s reasons as to how she was applying the principles set out in Mills. Ultimately, I would conclude that her Honour, in the course of her reasoning, as demonstrated by the way in which she approached the non-parole period and the topic of rehabilitation with respect to each of the appellants, has not accurately stated the position with respect to the treatment of youth. In my view, her Honour, in the exercise of the sentencing synthesis, in fact displaced youth. When one examines the non-parole periods it appears that the learned sentencing judge treated each of the appellants as an adult offender, or by and large, as an adult offender.
In those circumstances, I am satisfied that error has been demonstrated and that both grounds have been made out.
I turn then to the question of the exercise of the sentencing discretion, that discretion being re-opened. I have already set out in my reasons the circumstances of each of the appellants and their prospects of successful rehabilitation. In the course of submissions, counsel for Mr Taskiran provided us with further certificates relating to his client’s conduct in prison and his further attempts at rehabilitation. I note those matters.
Turning then to the re-sentence, in the circumstances of this matter, as stated by her Honour and indicated in my reasons, these were very serious forms of offending. An individual whilst, on the face of things, perpetrating a criminal offence, was subjected to vigilante behaviour which was frightening. The injuries to which that individual was subjected are appalling.
In my view, the gravity of the offending, and the condemnation which the courts must direct towards this type of conduct in the community, warrants an appropriately high sentence of the nature imposed by her Honour as the head sentence. Accordingly, I would not disturb the head sentence. However, as is apparent from my reasons, the non‑parole period must appropriately reflect the youth and the prospects of rehabilitation of each of the appellants.
Accordingly, with respect to the first appellant, Mr Taskiran, I would re‑sentence him, on count 1, to a term of imprisonment of eight years and six months. I would fix a non‑parole period of five years and six months.
With respect to the second appellant, Mr Nabalarua, I would re‑sentence him to a term of seven years' imprisonment. I would fix a non‑parole period of four years.
Appropriate orders will be made with respect to pre‑sentence detention and I will call upon counsel to indicate the appropriate figures.
Insofar as it may be necessary to provide an indication under s 6AAA of the Sentencing Act1991, and there are divergent views on this subject in the Court of Appeal, it seems, on this topic, I would, with respect to Mr Taskiran, save for his plea of guilty, have fixed a term of imprisonment, on count 1, of 10 years' imprisonment. I would have fixed a non‑parole period of seven years.
With respect to Mr Nabalarua, I would have fixed a sentence, under s 6AAA of the Sentencing Act 1991, of nine years' imprisonment and fixed a non‑parole period of six years.
HANSEN JA:
I agree.
WARREN CJ:
Accordingly, the formal orders to be made by the Court are as follows. With respect to the appellant, Mr Taskiran:
1. The appeal is allowed.
2. The sentence below is set aside and, in lieu thereof, the appellant is sentenced, on count 1, to eight years and six months' imprisonment.
3. A non‑parole period of five years and six months is fixed.
4. It is declared that the period of 550 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.
5. All other ancillary orders are confirmed.
With respect to the appellant Mr Nabalarua. The Court orders:
1. The appeal is allowed.
2. The sentence below is set aside and, in lieu thereof, the appellant is sentenced, on count 1, to seven years' imprisonment.
3. A non‑parole period of four years is fixed.
4. It is declared that the period of 537 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.
5. All other ancillary orders are confirmed.
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