New South Wales Court of Criminal Appeal CITATION : Regina v Yucel [2000] NSWCCA 532 FILE NUMBER(S) : CCA 60517/00 HEARING DATE(S) : 04/12/00 JUDGMENT DATE : 13 December 2000 PARTIES : Regina v Savas Yucel JUDGMENT OF : Meagher JA at 1; Hidden J at 2; Carruthers AJ at 3 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0234 LOWER COURT JUDICIAL Mahoney DCJ OFFICER : COUNSEL : (Crown): P G Berman SC (Respondent): P G Hogan SOLICITORS : (Crown): S E O'Connor (Respondent): John B Hajje & Associates CATCHWORDS : Sentencing - Crown Appeal against inadequacy - sentencing judge imposed non-parole period of 6.25% of overall term - delay of 6 months in hearing of appeal - Appeal upheld but in view of delay respondent re-sentenced to periodic detention. LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CASES CITED: Bugmy v The Queen (1990) 169 CLR 525 R v Behar (CCA, unreported, 14 October 1998) DECISION : See paragraph 27 IN THE COURT OF CRIMINAL APPEAL 60517/00 MEAGHER JA HIDDEN J CARRUTHERS AJ Wednesday, 13 December 2000 REGINA v Savas YUCEL JUDGMENT 1 MEAGHER JA: I reluctantly agree with Carruthers AJ. I say "reluctantly" because it seems to me a much heavier sentence was warranted. 2 HIDDEN J: I agree with Carruthers AJ. 3 CARRUTHERS AJ: This is a Crown appeal against the asserted inadequacy of a sentence imposed upon the respondent Savas Yucel at the Sydney District Court on 23 June 2000, when the respondent appeared for sentence on one count of robbery whilst armed with an offensive weapon pursuant to s 97(1) of the Crimes Act 1900, which provides a maximum penalty of twenty years imprisonment. 4 The respondent (who had earlier pleaded guilty to this offence) was sentenced by his Honour Judge Mahoney to imprisonment for four years to commence on 21 March 2000 and to expire on 20 March 2004. A non-parole period of three months and two days was imposed to commence on 21 March 2000 and to expire on 22 June 2000. 5 The respondent had in fact been in custody since 21 March 2000 and accordingly the effect of the sentence was that he became eligible to apply for parole on 23 June 2000. Parole was in fact granted and the respondent has been at liberty since 23 June 2000. 6 The notice of appeal was signed on 9 August 2000 and served on the respondent on 11 August 2000. 7 The respondent was born on 10 December 1979. He had a disturbed childhood. He was born in Australia to Turkish parents but effectively lived until the age of eight in Turkey. However, most of his life has been lived in Australia. 8 He was dealt with in the Children's Court on four occasions for various offences, none of which attracted a period of detention. 9 Objectively, the subject offence was a serious one, as is clear from the Facts Sheet which was tendered by consent before his Honour: "The defendant participated in an electronic recorded interview and made full admissions. The defendant stated he decided to commit the offence today as he was walking home from work. He stated he was in need of cash, he then went to a friends place and obtained the kitchen knife in which he states he intended to use to scare the staff of the store. The defendant further stated that he asked a friend to come with him as there were two persons working in the store today. The defendant refused to divulge the identity of this person. The defendant and the second person attended the Tandy Electronic Store. The defendant approached the store manager (victim 1) and walked behind the front counter where the cash register is located. The defendant was holding a knife pointing outwards at waist level towards victim 1. The defendant said, 'Come on, it's a holdup, come on, quick, go out the back room.' The defendant was pointing the knife at victim 1 and motioned him to the back room. Victim 2 who was standing nearby walked with victim 1 to the rear store room. The defendant directed the victims to sit in the corner of the room. Victim 2 complied whilst victim 1 remained standing. A second male person became involved and stood in the room. The defendant asked, 'Where's the safe?' Victim 1 replied, 'We don't have a safe anywhere.' The defendant said to the other male, 'Keep an eye on them.' This male stood near the doorway but didn't say anything. The defendant went to the front of the store and attempted to open the cash register however his attempt failed. The defendant returned to the rear store room and got victim 1 to open the cash register. As victim 1 was walking to the cash register the defendant said, 'Don't try anything, I'll stab you.' Victim 1 opened the cash register. The defendant and victim 1 returned to the store room. The defendant left the room and shut the door, the defendant went to the cash register and obtained cash, coins and mobile cards from the till. The defendant returned to the store room and asked victim 1 where the mobile phones were. Victim 1 obtained a number of mobile phones in boxes and placed them into his sports bag. The defendant and the second male left the store. Victim 1 waited for about 30 seconds and opened the store room door and saw that the offenders had left. Victim 1 contacted "000", Police attended shortly thereafter. LOCATED PROPERTY $556.50 - Australian currency. 3 x Motorola Mobile Phones (model # V2088) 1 x Ericsson Mobile Phone (GA 628). 1 x Motorola Express Mobile Phone 2 x Motorola M30 Mobile Phone 12 x Optus Express Prepaid Mobile Start Up Kits 16 x $30 Optus Express Recharge Cards 2 x $10 Optus Express Recharge Cards 2 x $50 Optus Prepaid Cable & Wireless Phone Express Cards 2 x $20 Optus Prepaid Cable & Wireless Phone Express Cards. TOTAL VALUE: $2926.50" 10 The sentencing judge was very impressed by the respondent's subjective circumstances and he considered the respondent's prospects of rehabilitation to be very high. He had a good work record and had been taken into a caring and supportive foster family. There is no history of drug abuse but the respondent has admitted to a gambling problem. 11 His Honour specifically noted (with apparent sympathy) that the respondent had been the subject of violence whilst in custody and presented in Court with a broken nose and two missing teeth. 12 The focus of the appeal was, of course, the asserted inadequacy of the non-parole period and the ratio of the non-parole period to the overall sentence. 13 His Honour formed the view that there were special circumstances justifying the judge to vary the primary relationship of 75% established by s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (hereinafter "the Act"). The effect of his Honour's variation was, however, that the non-parole period was reduced to 6.25% of the overall sentence. 14 The non-parole period should reflect matters such as the seriousness of the offence, the necessity for deterrence, and the offender's prospects of rehabilitation. For present purposes it must be emphasised that the non-parole period must clearly reflect the criminality involved in the offence. 15 It is appropriate to recall the well known remarks by Mason CJ and McHugh J in Bugmy v The Queen (1990) 169 CLR 525 at 530-531: "It has been said that '[t]he intention of the legislature is that a minimum term is a benefit to the prisoner': Iddon & Crocker v The Queen (1987) 32 A Crim R 315 at pp 325-326; and so it is. The effect of fixing a minimum term is that the Parole Board may thereafter, in the exercise of its discretion, grant parole: … But that does not mean that the sentencing judge, in fixing the minimum term, approaches the task on the footing that he or she is solely or primarily concerned with the prisoner's prospects of rehabilitation. Power v The Queen (1974) 131 CLR 623 put paid to that notion. Barwick CJ, Menzies, Stephen and Mason JJ observed at p 628: 'In a true sense the non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention.' After pointing out that the fixing of the non-parole period was concerned with deterrence (at p. 628), their Honours went on to say (at p.629): 'To read the legislation in the way we have suggested fulfils the legislative intention to be gathered from the terms of the Act, i.e. to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.' That comment was repeated in the unanimous judgment of the Court in Deakin (1984) 58 ALJR at p 367. See also Reg. v Paivinen (1985) 158 CLR 489 at p 495; Reg. v Watt (1988) 165 CLR 474 at p. 481 … Accordingly, although the fixing of a minimum term confers a benefit on the prisoner, it serves the interests of the community rather than those of the prisoner: Attorney-General v Morgan and Morgan (1980) 7 A Crim R 146. In that case Jenkinson J, with whom Kaye J agreed, pointed out (at p 155) that considerations relevant to the interests of the community which the imprisonment of offenders is designed to serve, as well as circumstances which mitigate punishment, will be taken into account in determining the head sentence and, again, in fixing the minimum term. At that stage the various interests of the community 'will be balanced against the advantages to the community which release on parole is thought likely in the particular circumstances to confer, and against whatever degree of mitigation mercy to the offender may claim without injustice". 16 For a recent case applying these principles: see R v Behar (CCA, unreported, 14 October 1998). 17 In the light of these well established principles it is manifestly clear that his Honour failed to reflect in the non-parole period the high degree of criminality involved in the subject offence. With respect to his Honour, it is apparent that his understandable concern with the rehabilitation of the respondent caused him to overlook the interests of the community in the deterrence of crime - in this case serious crime. 18 The intervention of this Court is, therefore, called for. Unquestionably, his Honour should have imposed a considerably longer period of full-time custody by way of the non-parole period. 19 However, the imposition of a longer sentence by way of full-time custody presents considerable difficulties at this stage. 20 The respondent has now been at liberty for almost six months. He has obtained permanent employment and is living in a stable family environment. 21 The Crown appeal was not lodged until 6 ½ weeks after the sentence was imposed. Due to no fault of the respondent the appeal was not listed for hearing until 4 December 2000. This delay raises considerable difficulties in the assessment of the appropriate penalty which should be imposed by this Court. 22 The significant progress which the respondent has made in his rehabilitation militates against the imposition of a further term of full-time custody at this stage by way of non-parole period. 23 In my view the appropriate course for this Court to take is to deal with the matter by way of the imposition of periodic detention. This would necessarily require the head term to be reduced to three years: see s 6(1) of the Act. The period of three months and two days already served must of course be taken into account. 24 His Honour had before him a pre-sentence report dated 22 May 2000 under the hand of Ms Marilyn Stevenson, the respondent's Probation and Parole Officer. This report assessed the respondent as suitable to serve his sentence by way of periodic detention and noted that vacancies then existed at Parramatta and that suitable transport arrangements were available. Indeed, annexed to the report was a Periodic Detention Undertaking signed by the respondent on 4 May 2000 and witnessed by Ms Stevenson: see s66(1)(f) of the Act. 25 The fact that the respondent is being re-sentenced on appeal constitutes special circumstances within the meaning of s 44(2) of the Act. 26 In view of the proposal that the respondent be re-sentenced by way of periodic detention the most convenient course is to re-sentence the respondent as from today subject, of course, to the provisions of s 70(1) of the Act which requires the Court to fix the date of commencement of the sentence so that it occurs no earlier than seven days, and no later than twenty one days, after the date in which the order is made. 27 I would propose therefore (after taking into account the time already served) that the following orders be made: (1) The appeal is allowed. (2) The sentence of the sentencing judge is quashed. (3) In lieu thereof the following sentence is substituted: (a) A sentence of three years imprisonment to date from 28 December 2000 and to expire on 27 December 2003. Such sentence is to be served by way of periodic detention. (b) A non-parole period is set of one year and six months to commence on 28 December 2000, also to be served by way of periodic detention. Thus, the respondent would be entitled to release on parole on 27 June 2002. (4) The respondent is to report to the Metropolitan Periodic Detention Centre, Parramatta on or before 7 pm on 28 December 2000. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.