R v Tuncbilek [2000] NSWCCA 465

New South Wales Court of Criminal Appeal

CITATION : R v Tuncbilek [2000] NSWCCA 465 FILE NUMBER(S) : CCA 60349/00 HEARING DATE(S) : 24/10/00 JUDGMENT DATE : 24 October 2000

PARTIES : Regina v Tarkan Tuncbilek JUDGMENT OF : Sheller JA at 40, 42; Dowd J at 41; Smart AJ at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0587; 99/11/0707 LOWER COURT JUDICIAL Ainslie-Wallace DCJ OFFICER :

COUNSEL : (Crown): P Hock (Respondent): R Burgess SOLICITORS : (Crown): S E O'Connor (Respondent: B Duchen CATCHWORDS : Crown Appeal against sentence - armed robbery - illness and intellectual disabilities. LEGISLATION CITED : Crimes Act 1900 R v Henry (1999) 46 NSWLR 346 Mason (2000) NSWCCA 82 CASES CITED: Chanh Thanh Ma (NSWCCA, 31 March 1995, unreported) Bavadra (2000) NSWCCA 292 House v The King (1936) 55 CLR 499 Dinsdale v The Queen (2000) HCA 54 DECISION : Appeal Dismissed.

IN THE COURT OF CRIMINAL APPEAL 60349/00

SHELLER JA DOWD J SMART AJ

Tuesday 24 October 2000

REGINA v Tarkan TUNCBILEK JUDGMENT 1 SMART AJ: The Director of Public Prosecutions appeals against the alleged inadequacy of a sentence for robbery while armed with a dangerous weapon. 2 The sentence was one of six years imprisonment with a non-parole period of three years. The judge took into account two unrelated charges of robbery whilst armed with a dangerous weapon and one charge of take and drive conveyance without the consent of the owner. The Director also appeals against a concurrent sentence of three years imprisonment for a second armed robbery committed immediately after the first armed robbery and in the same location. The prisoner was convicted by a jury after a trial lasting about ten days. 3 On 21 May 1999 a Holden Commodore VKF 299 was stolen from Little Church Street, Ryde. The prisoner and two co-offenders travelled in the stolen vehicle to Concord West newsagency. The vehicle stopped a short distance from the newsagency. One of the co-offenders remained in the driver's seat of the vehicle with the engine running. 4 About 2.30 to 2.40 pm Mrs Sorbello was serving a customer in her newsagency. A co-offender followed by the prisoner entered her shop. The prisoner produced a silver replica pistol, asked her where the safe was and then told her to open the till. The pistol was pointed against her chest. About $120 was removed from the till. The co-offender was in the office area. 5 Mrs Sorbello's son had been working outside his mother's shop and noticed a man walk up the street and into the shop. When the son entered the shop he was directed to lie on the floor in front of the counter and did so. Whilst the son was lying on the ground the prisoner tapped him on the shoulder with the pistol and demanded his bum bag. After obtaining the bag, both offenders left the newsagency. That bag contained the son's wallet with about $120 in cash and personal items. 6 The prisoner and the co-offender returned to the stolen vehicle and the three offenders left the area in the vehicle. A short time later police observed the vehicle, it was followed and a pursuit commenced. Ultimately, the stolen car was crashed and the occupants ran away. The prisoner and a co-offender were apprehended some distance from the scene of the accident. The driver was arrested nearby and has pleaded guilty to driving the car used in the robbery. 7 Mr Hickey, a co-offender, who was tried at the same time as the prisoner, absconded while the jury was deliberating. He was convicted in his absence. 8 The prisoner's defence was that he was not part of the robbery but had been in the area and was arrested on his way to a shop which hired out videos in the Turkish language. He claimed that he intended to hire some videos to watch with his mother. 9 As to the offences taken into account, the first robbery whilst armed with a dangerous weapon occurred on 4 April 1999 when the prisoner and co-offender entered a bottle shop at Paddington. The prisoner, who was armed with a handgun, pointed it at the chest of the lone sales assistant while the co-offender punched the sales assistant in the jaw, knocking him into a display. The prisoner and the co-offender rifled through drawers and the till, removing about $200. They demanded the victim's wallet, but it was not available in the shop. 10 The second armed robbery taken into account occurred on 17 May 1999. The prisoner stopped the lone female victim at an intersection in Chippendale on the pretence of asking for directions. The prisoner produced a silver coloured semi automatic styled pistol from his shorts and menaced the victim, telling her to get into her car. The victim, afraid for her life, backed away and the prisoner grabbed the victim's car keys. She also gave the prisoner her handbag. The prisoner got into the victim's car, valued at $38,000, and drove off. She was left traumatised on the street. 11 Arising out of this incident the prisoner was also charged with take and drive conveyance without consent of owner. 12 The prisoner was born on 24 August 1977. He has a lengthy record, beginning in July 1991. The record includes major and lesser offences. These include sexual assault offences, break, enter and steal offences, driving offences, robbery in company, escape lawful custody and assault occasioning actual bodily harm. 13 In October 1997 he was sentenced in respect of three counts of robbery being armed and in company, and received a minimum term of three years ending on 3 January 1999 and an additional term of three years ending on 3 January 2002. Six counts of robbery being armed and in company were taken into account as well as charges of robbery, common assault and assault police. 14 The subject offences and those taken into account were committed while the prisoner was on parole. On 23 May 2000 the prisoner's parole order was revoked and he was directed to serve the balance of the parole period of two years seven months and 14 days. Because the prisoner's sentences started from 21 May 1999 this means that the prisoner will serve but two days of the revoked parole period. This is not uncommon where there are successive sentences. 15 The materials reveal that the prisoner's father died in 1991 and that the prisoner was much affected by this and became confused. The prisoner's sister said that the prisoner had always been difficult and had behavioural problems. Her father did not understand that these behavioural problems, when eventually diagnosed, were a product of an illness, and used to be violent towards the prisoner. The prisoner's mother and sister and older brother have been supportive of him and this continues. 16 The sister stated that her mother has poor English and was unable to comply with the treatment and medication regimes prescribed for the prisoner by doctors from time to time. The report of Dr G L Serfontein of 4 September 1992 records that he had assessed and treated the prisoner in the past for attention deficit disorder. As at the date of the report, Dr Serfontein thought that the prisoner still had distinct features of his attention deficit disorder. 17 Dr Serfontein noted that apart from the prisoner's inattentiveness and restlessness, he remained impulsive and had a low frustration threshold. His self esteem was poor. Dr Serfontein stressed that it was crucial that the prisoner take his medication. In his report of 7 December 1992 Dr Serfontein wrote that the prisoner had a severe form of attention deficit disorder and that he should be on his medication every day of the year. Dr Serfontein stated that the prisoner's behaviour could only be modified when he was given the abilities to cope with changes in his environment and that he could not do this when the attention deficit disorder was untreated. 18 The prisoner's sister said that her brother was always getting into trouble at school and was not accepted there. He sought the company of children older than himself and quickly fell into bad company. 19 In her report of April 1997 Associate Professor Susan Hayes wrote that the prisoner's receptive language is at a level of three years and eleven months. She continued: "Mr Tuncbilek is mildly intellectually disabled and overall functions cognitively at a level lower than 99.7 per cent of the population, and his adaptive behaviour is at a level lower than 99.9 per cent of the population. In particular, he has very poor communication skills, especially receptive language. He says that he has great difficulty understanding what people say to him, and he also finds it difficult to express himself verbally. In relation to the diagnosis of attention deficit disorder it is possible that he suffered from attention deficit disorder, and may still do so to some extent, but also his intellectual disability means that he has a short attention span. His intellectual disability plus aggressive behaviour at school has meant that he has received inadequate schooling and assistance over the years. Mr Tuncbilek needs to be prepared for release in the context of having a mild intellectual disability and serious deficits in communication skills. He cannot comprehend his own behaviour, and has difficulty understanding the long term effects of things that he does. When he describes himself as acting on the spur of the moment, this is probably a correct description of the situation, because he does not think through what he is about to do. He needs to be involved in anger management classes, specifically designed for people with a mild intellectual disability. He also needs to be involved in vocational preparation programs, similarly designed for people with a mild intellectual disability. Since he is highly motivated towards being a good parent for his son, it would also be a good strategy to involve him in parenting skill classes, as he would be able to perceive the practical application of such classes.