The Queen v Riza Yilmaz
[2003] ACTCA 20
•31 OCTOBER 2003
THE QUEEN v RIZA YILMAZ [2003] ACTCA 20 (31 OCTOBER 2003)
CRIMINAL APPEAL – sentencing – appeal by Crown against sentence – constraints on Crown appeal against sentence – manifest inadequacy – timing of plea – parity principle – whether respondent’s role expressly drawn to the attention of the sentencing judge – whether any distinction was made between the offenders as to their culpability.
CRIMINAL LAW – sentence – plea of guilty to count of trespass with intent to assault occasioning actual bodily harm – respondent previously acquitted of related count of murder – basis of fact upon which sentencing judge ought pass sentence.
Everett and Phillips v The Queen (1994) 181 CLR 295
The Queen v Griggs (1999) 95 FCR 490
The Queen v Hill [1979] VR 311
R v Delphin (2001) 79 SASR 429
R v Olbrich (1999) 199 CLR 270
Postiglione v The Queen (1997) 189 CLR 295
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 2 - 2003
No. SCC 262 of 1999
Judges: Gray, Cooper and Weinberg JJ
Court of Appeal of the Australian Capital Territory
Date: 31 October 2003
IN THE SUPREME COURT OF THE ) No. ACTCA 2 – 2003
) No. SCC 262 of 1999
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: THE QUEEN
Appellant
AND: RIZA YILMAZ
Respondent
ORDER
Judges: Gray, Cooper and Weinberg JJ
Date: 31 October 2003
Place: Canberra
THE COURT ORDERS THAT:
The appeal be dismissed.
IN THE SUPREME COURT OF THE ) No. ACTCA 2 – 2003
) No. SCC 262 of 1999
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: THE QUEEN
Appellant
AND: RIZA YILMAZ
Respondent
Judges: Gray, Cooper and Weinberg JJ
Date: 31 October 2003
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
This is an appeal by the Director of Public Prosecutions against a sentence imposed on the respondent. The respondent pleaded guilty to a charge that, together with Mutlu Yildiz, he committed an offence of trespass with intent to assault occasioning actual bodily harm. Also charged was the respondent’s wife, Melissa Yilmaz, and she pleaded guilty to a charge of conspiracy to commit an assault occasioning actual bodily harm in respect of the same incident. On 19 December 2002, sentences were imposed on each of these participants. The prosecution has only appealed in respect of the sentence imposed upon the respondent.
The statement of facts
The “case statement” upon which the prosecution relied, and which the respondent accepted as constituting the facts upon which he was to be sentenced, set out the following in respect of the circumstances of the offence -
The background to the incident is that Melissa Yilmaz was for some months in a relationship with the deceased which ended in the weeks prior to 13 October 1998. The relationship ended and Melissa Yilmaz moved to Sydney and started a relationship with Riza Yilmaz, moving into his flat. The deceased, however, continued to ring Melissa Yilmaz threatening to harm or kill both Melissa and Riza Yilmaz and stating that he was a diplomat and that he was “untouchable” even by the police. The 3 accused resented the continued harassment by the [deceased] Mr Al-Ghamdi to the extent that they formulated a plan to travel to Canberra to confront Mr Al-Ghamdi. Riza Yilmaz and Mutlu Yildiz spoke about Mr Al-Ghamdi and how he had ill-treated Melissa Yilmaz in the past and how he was threatening and harassing her now. Riza Yilmaz said that he complained to the AFP in Sydney about Mr Al-Ghamdi’s threatening phone calls but he said that the AFP advised that they could not stop the phone calls. Melissa Yilmaz’s father also complained to the AFP. Again to no avail. Riza and Melissa Yilmaz changed mobile phones as well in an attempt to stop the harassment but that failed to stop the calls from Mr Al-Ghamdi. These 2 accused spoke to one Murat Kurt. They had at least one meeting where they agreed to travel to Canberra to confront the deceased and dissuade him from contacting Melissa Yilmaz again and that such dissuasion would include the infliction of actual bodily harm if Mr Al-Ghamdi did not agree to stop making the phone calls. Melissa Yilmaz was to speak to Mr Al-Ghamdi first in an attempt to talk him out of continuing the phone calls.
At about 3.50 pm on Monday 12 October 1998 the deceased left work for the day. He drank alcohol at a number of establishments in Kingston before returning to his apartment at Oakford Apartments, Howitt Street, Kingston at about 9.45 pm.
After 6.00 pm on 12 October 1998, Murat Kurt drove his work car to an area near Riza Yilmaz’s unit. He met Melissa Yilmaz and Riza Yilmaz and later Mutlu Yildiz.
The 4 then drove to Canberra in Melissa Yilmaz’s car a 1998 model Hyundai Excel sedan ACT registration YAE36C. During the drive the 4 discussed further a number of matters including what would happen when they confronted the deceased, how to get in to the premises and the roles of the respective accused. At some stage the accused Riza Yilmaz gave Murat Kurt and Mutlu Yildiz surgical gloves so that their fingerprints would not be left at the scene.
After they arrived in Canberra they parked in the carpark next to the deceased’s Apartments. They took out the surgical gloves that Riza Yilmaz had given them earlier. Over the surgical gloves Mutlu Yildiz and Riza Yilmaz wore one fingerless black leather glove each.
They all got out of the vehicle. Someone opened the boot of the vehicle and took out Murat Kurt’s air rifle. The four then walked to the security door of the deceased’s block of units. Riza Yilmaz, Mutlu Yildiz and Murat Kurt waited while Melissa Yilmaz pressed the security button, spoke to Mr Al-Ghamdi saying she and her boyfriend were outside. Mr Al-Ghamdi opened the security door, and followed by Riza Yilmaz, Mutlu Yildiz and Murat Kurt, entered the apartment block. Melissa Yilmaz knocked on the deceased’s door and went inside. The other three men ran up the stairs and lined up against the wall next to the deceased’s front door. After a short time Melissa Yilmaz screamed, Riza Yilmaz felt his pulse in his ears and tried to rip the door lock open with both hands. The door then opened by Melissa Yilmaz who then ran out and the other three barged into the apartment.
Mr Al-Ghamdi was standing in the kitchen, with a knife in his hand, wearing a kaftan screaming and yelling. Riza Yilmaz lost his memory at this point. Mr Yildiz admits that at this stage he assaulted Mr Al-Ghamdi. Some time later the accused left the apartment and returned to Sydney.
The events after the offence
On 13 October 1998, the police found Mr Al-Ghamdi dead in his flat. They interviewed Melissa Yilmaz on 15 and 22 October 1998, and again on 9 November 1998. She denied any involvement in his death, and also denied having come to Canberra on the night in question. The respondent was interviewed on 15 October 1998. He too denied any involvement in Mr Al-Ghamdi’s death. On 30 May 1999, the police interviewed Mutlu Yildiz. He admitted having come to Canberra with the relevant intent, and also admitted having entered the unit, and having assaulted the deceased.
The respondent was arrested on 30 May 1999, together with his wife and Mr Yildiz. He was granted bail on 19 October 1999, having been in custody for three months and 20 days. On 24 October 1999, all three were committed for trial to the Supreme Court of the ACT on a charge of murder. Mr Kurt pleaded guilty to being an accessory after the fact to the murder. On 23 June 2000, he was sentenced to two years imprisonment, with a non-parole period of one year. The sentence took into account his undertaking to give evidence at the trial of the respondent and the other accused.
The trial commenced after a successful application severing a count for aggravated burglary. On 11 August 2000, the jury acquitted the respondent and Mr Yildiz of the charge of murder, and acquitted the respondent’s wife of a charge of accessory after the fact to murder.
On 10 October 2001, the Director of Public Prosecutions signed an indictment charging aggravated burglary. An application by the respondent for a stay of this indictment was dismissed on 25 March 2002. On 7 May 2002, Mr Yildiz agreed to plead guilty to a charge of trespass with intent to commit assault occasioning actual bodily harm. He gave a lengthy statement to the police, as well as agreeing to give evidence against the respondent and his wife.
On 16 May 2002, Mr Yildiz pleaded guilty. The Director of Public Prosecutions gave Mr Yildiz’s statement to the respondent on about 27 May 2002. On 24 June 2002, the the respondent indicated that he would plead guilty to the indictment, although it had not yet been settled at that stage. On 9 October 2002, the respondent was arraigned and formally pleaded guilty. On 19 December 2002, all three accused were sentenced.
The sentences imposed
The respondent was sentenced to two years imprisonment, backdated to 30 July 2002 to take into account presentence custody. The sentencing judge directed that he be released forthwith upon entering into a recognisance in the sum of $2,000.00 to be of good behaviour for a period of three years. His Honour imposed conditions as to supervision by the Director of ACT Corrective Services, including psychological counselling, treatment and rehabilitative programs that might be considered appropriate.
Mr Yildiz was sentenced to 18 months imprisonment, to commence from 7 September 2002, to take account of presentence custody. In his case, it was directed that he be released forthwith upon entering into a recognisance in the sum of $1,500.00 to be of good behaviour for a period of two years. A condition of the recognisance was supervision by the Director of Corrective Services or such persons as the Director may appoint.
Melissa Yilmaz was sentenced to six months imprisonment, backdated to 15 November 2002, on the charge of conspiring to commit an assault such as might occasion actual bodily harm. In her case, it was directed that she be released forthwith upon her entering into a recognisance in the sum of $1,000.00 to be of good behaviour for a period of 12 months and to accept supervision from the Director of Corrective Services.
Constraints on prosecution appeals
The constraints upon an appeal by the prosecution against sentence are well known and the Director’s submission to this Court accepts those constraints. In Everett and Phillips v The Queen (1994) 181 CLR 295, Brennan, Deane, Dawson and Gaudron JJ said at 299-300 –
Nonetheless, in its exercise, a court of criminal appeal must, in the absence of clear statutory direction to the contrary, recognize that there are strong reasons why the jurisdiction to grant leave to the Attorney-General to appeal against sentence should be exercised only in the rare and exceptional case. An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed. That being so, a “court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified” (Malvaso v The Queen (1989) 168 CLR 227 at pp 234-235). In determining whether that question should be answered in the affirmative, a court of criminal appeal should be guided by the following comment of Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 at 310 –
“an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.”
The reference to “matter of principle” in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting “error in point of principle”. [footnote omitted]
The present appeal is one that can really only be put on the basis of an alleged manifest inadequacy of the sentence. Although other grounds were referred to, it became clear after argument that unless the Director of Public Prosecutions could satisfy that test, the appeal could not succeed. In that regard, reference may be made to comments of McHugh J in Everett and Phillips v The Queen (supra) at 306 where he said –
Defining the limits of the range of appropriate sentences with respect to a particular offence is a difficult task. What is the range in a particular case is a question on which reasonable minds may differ. It is only when a court of criminal appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence.
(See also The Queen v Griggs (1999) 95 FCR 490 at 494 citing a number of cases on appeal to the Full Court of the Federal Court from the Supreme Court of the ACT.)
Special factors
When the matter came on for hearing, the Director expressly disclaimed any reliance upon a contention that he had earlier made in his written submissions. That contention concerned the seriousness of what the submissions described as “the consequences of the offence” but which really referred to the circumstances which followed the commission of the offence. He did so after referring the Court to the decision of the Full Court of the Supreme Court of Victoria in R v Hill [1979] VR 311, and also the decision of the Full Court of the Supreme Court of South Australia in R v Delphin (2001) 79 SASR 429. In particular he referred to a passage in the judgment of Debelle, Bleby and Wicks JJ at 439 -
In this case the commission of the serious criminal trespass occurred on entry. The intention could not have covered the individual items alleged. It could only cover a general intention to steal. A separate, identifiable and serious offence appears to have been committed in addition to the serious criminal trespass. The appellant was not charged with that offence, and it would be wrong to take the extent of that larceny into account in this particular case in determining the penalty for the serious criminal trespass.
It follows that where the prosecution alleges that a substantive offence has been committed on the premises subsequent to the serious criminal trespass, where the intention accompanying the trespass is not identical with that relevant to the substantive offence, and where the circumstances of that offence are to be taken into account in sentencing, the substantive offence must be separately charged. The circumstances cannot be taken into account merely as background circumstances to a charge of serious criminal trespass.
In the present case, the Director had not charged any offence other than the trespass. As we understood his position, he now no longer considered that he was justified in relying upon the consequences that ensued subsequent to the trespass, rather confining the offence to the intent admitted on the plea. That concession becomes a material factor in assessing the seriousness of the offence for the purposes of this appeal. Whether or not the concession was well founded, this Court was not asked to do anything other than act in accordance with it.
To this may be added a further factor affecting the view that a Court might take of the offence. The nature of the intent in this case was conditional. It was only if Mr Al-Ghamdi did not agree to cease the harassing phone calls that it was agreed to seek to dissuade him by physical force (which would include the infliction of actual bodily harm). This factor did not receive any special attention in the sentencing remarks.
Factors in sentencing for the offence charged
Notwithstanding these matters, the Director pressed, as at least a pointer to what he said was the manifest inadequacy of the sentence, the seriousness of the offence before the Court. It was indeed a serious offence. It was conduct that should not be condoned in any way. However, it cannot be said that the sentencing judge did not appreciate this. In the sentencing remarks he said -
But on the other hand, one cannot use the fact that a victim of crime has acted provocatively, even seriously so, even unlawfully so, to justify the sort of enterprise into which these three offenders entered. That is to plan to invade the man’s home and there assault him, at least to the extent of causing him some actual bodily harm. It is a serious matter and it needs therefore to be condemned, notwithstanding the condemnation which one might direct at the victim in question for behaving in the manner in which he had.
The passage that we have cited also indicates an appreciation of the part of the sentencing judge of the deterrent and retributive factors in the sentences to be imposed. It can fairly be said that his Honour fully appreciated these matters. The Director’s argument that there was a failure “to provide adequately for deterrent and retributive factors in the sentence imposed” amounted to no more than an overall complaint as to what he maintained was the manifest inadequacy of the sentence.
The plea of guilty
Similar considerations apply to the point taken by the Director that the sentencing judge gave too much weight to the plea of guilty. The only reference to the respondent’s plea of guilty in the sentencing remarks was to the fact that it had been entered at the earliest practicable stage. There was nothing in those remarks to indicate the extent of any allowance made for that plea.
The situation concerning the plea was unusual. The respondent had been acquitted of the charge of murder. The plea was proffered only after there had been an unsuccessful challenge to the charge of aggravated burglary, on the basis that it involved an abuse of process. Nonetheless, the offer was made before the indictment of trespass with intent was finalised, albeit after Mr Yildiz had indicated his intention to plead guilty to that charge. By the time the offer was made, Mr Yildiz had provided a statement to the prosecution, and indicated his willingness to give evidence against the respondent.
These circumstances do not call for a fine analysis of the timing of the plea or indicate a requirement to do other than take the fact of the plea at the time that it was made into account. It was open to the sentencing judge to regard the plea as he did. A more pertinent factor was the time that had elapsed between the date of the offence and the entry of the plea. This was a matter that the sentencing judge regarded as significant. It was open to him to do so.
The respondent’s role in the offence
In order to demonstrate that the sentence was inadequate, the Director sought to emphasise the respondent’s role in the commission of the offence. The difficulty with this submission is that the agreed statement of facts does not distinguish between the roles played by the various offenders. Moreover, no attention was given to this issue during the course of the sentencing submissions.
The respondent was entitled to be dealt with on the basis of the agreed statement of facts. If there were matters not addressed in that agreed statement upon which the prosecution wished to rely as circumstances of aggravation, particularly as between co-offenders, then it could be expected that they be the subject of specific reference. Although the sentencing judge had presided over the trial in which the respondent had been acquitted of murder, the subsequent sentencing proceedings were dependent, from a factual perspective, solely upon the agreed facts set out in the case statement. If the prosecution wished to rely upon aggravating features not contained in that statement, it should have brought those facts to the attention of the Court, and given the respondent the opportunity to be heard in relation to them.
In R v Olbrich (1999) 199 CLR 270 at 274, Gleeson CJ, Gaudron, Hayne and Callinan JJ observed that the sentencing decision is very much affected by the factual basis upon which the sentencing judge proceeds. The principle now settled by that case, and applied by sentencing courts throughout Australia, is that a sentencing judge may not take facts into account in a way that is adverse to the interests of an accused unless those facts have been established beyond reasonable doubt. The importance of raising such a matter in the sentencing process was emphasised by their Honours at 281 -
Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say “if necessary” because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.)
The appeal book contained a transcript of the evidence given by the respondent at his trial for murder. However, it is by no means clear that the sentencing judge had that material before him when he came to sentence the respondent on the charge of trespass. That is so notwithstanding the fact that the respondent’s counsel referred to the plea being in accordance with the evidence his client gave at the trial. Even with that material being referred to generally, any specific points to be drawn from it should have been drawn to the sentencing judge’s attention.
Before this Court, the Director submitted that the respondent had been the “motivator” and “initiator” of the offence. The references given in support of that submission were taken entirely from the respondent’s evidence at the trial.
We do not think that the sentencing judge incorrectly assessed the role played by the respondent in the commission of the offence. The sentencing remarks are based upon what was set out in the agreed statement of facts. To the extent that the respondent’s evidence at the trial may have contained an admission that the role that he played was greater than that of the co-accused, it would nonetheless be inappropriate to use that evidence as the basis for such a finding, at least in the absence of any submission to the sentencing judge to that effect.
Parity
The issue of parity in relation to sentences imposed upon co-offenders is an important principle that has particular application in the circumstances of this case given that the agreed statement of facts did not distinguish between the role played by the respondent, and that played by Mr Yildiz. In Postiglione v The Queen (1997) 189 CLR 295 at 301, Dawson and Gaudron JJ said -
The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them (see Lowe v The Queen (1984) 154 CLR 606 at 610-611, per Mason J). In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error (Lowe v The Queen (supra) at 617-618, per Brennan J). Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen (supra), recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to “a justifiable sense of grievance” (Lowe v The Queen (supra), esp at 610, per Gibbs CJ; at 613, per Mason J; and at 623, per Dawson J). If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing option.
Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.
The prosecution, having failed to establish before the sentencing judge that the respondent played a greater role in the commission of the offence than did his co-accused, cannot be heard to complain in this Court that the sentences imposed were insufficiently disparate.
The charge upon which Mrs Yilmaz pleaded guilty carried a maximum penalty of five years imprisonment. However, the prosecution disavowed any suggestion that she should receive an immediate custodial sentence. It took essentially the same approach in relation to Mr Yildiz, although the charge in relation to which he pleaded guilty carried a maximum penalty of fourteen years imprisonment.
When it came to the respondent, the prosecution submitted to the sentencing judge that only a term of imprisonment that involved actual incarceration would suffice. The prosecution also submitted that the admittedly long delay between the commission of the offence and the respondent’s sentencing did not warrant a departure from that course. No submission was made regarding the respondent’s role in the commission of the offence, and no argument as to parity was advanced.
Conclusion
We do not think that the prosecution should be permitted to present a different case on appeal to that which it put before the sentencing judge. In our opinion, and notwithstanding the Director’s cogent and helpful submissions, there is no justification for interfering with the sentence imposed upon the respondent.
It can be seen from what is set out earlier in these reasons for judgment that this case had a number of very unusual features. It should not be thought that the sentence imposed gives any guidance as to the appropriate sentence in the usual case of trespass with intent to commit an indictable offence. It must be expected that an offence of that nature could well merit an immediate custodial sentence of significantly greater length than those imposed upon the respondent, or his co-accused. The unusual features of this case, particularly the delay involved in bringing the matter before the sentencing judge, the acquittal of the offenders on a charge of murder, and the taking of pleas to offences not involving the commission of actual violence, combined with the fact that there was no express differentiation between their respective roles, place this case in what may fairly be regarded as an exceptional category.
The appeal is dismissed.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 31 October 2003
Counsel for the Appellant: Mr R Refshauge SC
Solicitor for the Appellant: Director of Public Prosecutions (ACT)
Counsel for the Respondent: Mr J Purnell SC
Solicitor for the Respondent: Maliganis Edwards Johnson
Date of hearing: 6 August 2003
Date of judgment: 31 October 2003
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