New South Wales Court of Criminal Appeal CITATION : Regina v Tayfun [2001] NSWCCA 417 FILE NUMBER(S) : CCA 60101/01 HEARING DATE(S) : Monday 15 October 2001 JUDGMENT DATE : 15 October 2001 PARTIES : Regina v Ayan Tayfun JUDGMENT OF : Grove J at 1; Bell J at 17 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0739 LOWER COURT JUDICIAL Blanch CJ/DC OFFICER : COUNSEL : R.A. Hulme (Crown) In person (Applicant) SOLICITORS : S.E. O'Connor (Crown) CATCHWORDS : CRIMINAL LAW AND PROCEDURE - SENTENCE - MATTERS ARISING SUBSEQUENT TO SENTENCE - FAILURE TO ENLIVEN EXERCISE OF APPELLATE JURISDICTION - NO SPECIAL POINT OF PRINCIPLE - RECOMMENDATION TO EXECUTIVE AUTHORITIES TO CONSIDER MATTERS RAISED BY APPLICANT DECISION : APPEAL DISMISSED IN THE COURT OF CRIMINAL APPEAL 60101/01 GROVE J BELL J Monday 15 October 2001 REGINA v AYAN TAYFUN JUDGMENT 1 GROVE J: This is an application for leave to appeal against the severity of sentence imposed by Judge Blanch, the Chief Judge of the District Court. The applicant was sentenced to imprisonment for a term of three years with a non-parole period of two years for a single offence of breaking, entering and stealing for which the prescribed maximum penalty is 14 years imprisonment. His Honour imposed that sentence after the applicant pleaded guilty and he was asked to take into account three further offences on a Form 1. 2 It is appropriate to make some reference to the background of offences of the applicant as they appeared before the sentencing judge. 3 The offence for which sentence was imposed was committed between 23 and 27 April 1999. The reference to "July" in the transcript is obviously a typing error. The three offences his Honour was asked to take into account were another offence of breaking, entering and stealing committed on 1 August 2000, a charge of possessing house breaking implements on the same date and a charge of larceny on 3 August 2000. 4 His Honour regarded it as important to analyse what he described as some of the applicant's recent history. He noted that on 12 January 2000 the applicant had been before the District Court on appeal from a sentence imposed by a Magistrate in respect of charges of breaking, entering and stealing and goods in custody. He was sentenced to two months imprisonment and released on a bond to be of good behaviour for two years. On 17 June 1999 he had been dealt with in a Magistrate's Court on two charges of breaking, entering and stealing and sentenced to a minimum term of one year dated to commence on 21 May 1999. 5 A number of matters were observed by his Honour. They included the commission of offences whilst on parole and it also may be observed that offences were committed very shortly after the applicant was from time to time released from custody. The applicant has apparently had a drug problem and there was put before his Honour a proposition that the applicant might be considered for the Salvation Army bridge programme. He had been assessed as suitable and there was a recommendation that he undergo that programme. His Honour noted a submission that the applicant should be given one last chance but reached the conclusion that the applicant had had such a final chance previously and failed to meet it. Accordingly, he imposed the sentence which I have indicated. 6 The applicant, in response to the Registrar's direction, has put before this Court in writing three matters upon which he wishes to rely and has orally added a fourth matter. 7 The first matter asserted that the applicant applied for rehabilitation but that the judge did not take that into consideration. As I have indicated, his Honour made a specific finding in that regard, although it was not favourable to the applicant. Accordingly, it cannot be said that his Honour did not take it into consideration. 8 The second matter related to the applicant's medical condition. I do not, for present purposes, need to specify all the detail but there has been handed to the Court today some pathology reports which confirm what he has said about the matter. He has also indicated that because of matters to which I shall turn concerning his present circumstances of custody, he is not receiving or at least is disadvantaged in receiving appropriate treatment. This is, of course, a matter which is subsequent to sentence and is a matter for the gaol authorities. It does not manifest error in the Court below that his Honour was unable to foresee the precise circumstances about which the applicant now speaks. 9 The third matter which the applicant raises is a matter which, had it been current at the time of sentence, might have given rise to the type of discount in sentence which is usually referred to by reference to the case of Queen v Cartwright. In the interests of the applicant I have indicated that I do not intend to elaborate the circumstances which he has detailed not only in the response to the Registrar but in another document which he has handed to the Court today. It is important that I record that the matters relating to this topic have been confirmed by inquiries on the part of the Crown and, for my part, I would strongly recommend to the Executive and to the prison authorities that assessment be made and consideration be given to the circumstances that the applicant has here raised. 10 However, as I have said, this is a matter which is entirely subsequent to sentence and, accordingly, it is not a matter which is appropriately investigated by this Court at this juncture. 11 I have explained to the applicant that the jurisdiction of this Court is enlivened by error and not by matters which are subsequent to the sentencing proceedings except in the most exceptional circumstances and these are not they. Fresh evidence is not received in order to determine the exercise of appeal jurisdiction. 12 The matter which the applicant raised orally concerned the discount for the applicant's plea of guilty. The sentencing judge mentioned at the outset of his remarks that the applicant had pleaded guilty and later observed that he was entitled to consideration for the fact that he had pleaded guilty at the earliest opportunity and he said that any sentence must reflect a discount not only for the contrition that that demonstrates but also for the saving of Court time. 13 Relatively recent authority has encouraged sentencing judges to specify the amount of any such discount with particular reference to the discount for what is generally referred to as the utilitarian value of a plea of guilty. In this case his Honour referred to the saving of Court time. Whilst judges are encouraged so to do, it does not bespeak error to omit to do so. 14 Given the applicant's record – and it is only to some of the recent matters that I have made reference – the sentence imposed clearly would have taken into account in the applicant's favour the matters which his Honour said he was going to take into account in his favour. 15 Accordingly, I would repeat my commendation to the appropriate authorities that consideration be given to the matters raised by the applicant, with particular reference to the consequential effects which are taking place in relation to his custody. 16 That said however, as a matter of this Court's jurisdiction, I am unpersuaded that a case for intervention can or has been established. Accordingly, I would grant the application for leave to appeal but dismiss the appeal. 17 BELL J: I agree. 18 GROVE J: The orders of the Court will, therefore, be as I have proposed. ********** 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.