New South Wales Court of Criminal Appeal CITATION : Regina v Bulut [2004] NSWCCA 325 HEARING DATE(S) : 20/09/04 JUDGMENT DATE : 20 September 2004 JUDGMENT OF : Spigelman CJ at 1, 24, 26; Barr J at 25; Hoeben J at 2 DECISION : Leave to appeal granted, appeal dismissed. CATCHWORDS : SENTENCING: Administering stupefying drug with intent to steal - s38 Crimes Act, 1900. LEGISLATION CITED : Crimes Act, 1900 CASES CITED : R v Harrison (1997) 93 A Crim R 314 at 320 R v Dawson [2000] NSWCCA 399 at [54] PARTIES : Sayut Bulut - Applicant Crown - Respondent FILE NUMBER(S) : CCA 2004/1812 COUNSEL : J Conomos - Applicant D Woodburne - Crown SOLICITORS : Tsambas & Co - Applicant S Kavanagh, Solicitor for Public Prosecutions - Crown LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0688 FILE NUMBER(S) : LOWER COURT Solomon DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 2004/1812 (60289/04) SPIGELMAN CJ BARR J HOEBEN J Monday, 20 September, 2004 REGINA v Sayut BULUT Judgment 1 SPIGELMAN CJ: I invite Justice Hoeben to give the first judgment. 2 HOEBEN J: On 6 May 2003 the applicant, Sayut Bulut, was indicted before his Honour Judge Solomon in the District Court at Sydney on the following two charges, committed on 7 January 2002: Count 1: Administer stupefying drug to commit an indictable offence (stealing) in contravention of s38 of the Crimes Act 1900 for which the prescribed maximum penalty is imprisonment for 25 years; and Count 2: Steal property in dwelling house in contravention of s148 of the Crimes Act 1900 for which the prescribed maximum penalty is imprisonment for 7 years. The applicant was also indicted for an offence committed on 9 January 2002, as follows: Count 3: Dispose of stolen property in contravention of s188(b) of the Crimes Act for which the prescribed maximum penalty is imprisonment for 10 years. 3 The applicant entered pleas of not guilty. Following a trial before his Honour and a jury, verdicts of guilty were returned on 15 May 2003. On 18 July 2003 the applicant was sentenced on each charge as follows: Count 1: Imprisonment for 7 years with a non-parole period of 5 years and 3 months; and Counts 2 & 3: On each count, imprisonment for 3 years with a non-parole period 2 years and 3 months. 4 Each of the sentences for counts 1, 2 and 3 were ordered to commence on 26 November 2003. The sentences were to be served concurrently and in relation to count 1, the sentence was due to expire on 25 November 2010 with the non-parole period of 5 years and 3 months due to expire on 25 February 2009. 5 The reason for those sentences commencing on 26 November 2003 was that the applicant had pleaded guilty on 23 November 2002 to the following offences committed on 6 June 1995: Count 1: Break, enter and steal in contravention of s112(1) of the Crimes Act for which the prescribed maximum penalty is imprisonment for 14 years; and Count 2: Receive stolen property in contravention of s188(b) of the Crimes Act for which the prescribed maximum penalty is imprisonment for 10 years. The applicant pleaded guilty to count 2, which was accepted by the Crown in full satisfaction of the indictment. On 18 July 2003 the applicant was also sentenced for this earlier offence by his Honour to imprisonment for 9 months with a non-parole period of 6 months. 6 This sentence was ordered to commence on 26 May 2003, with the non-parole period due to expire on 25 November 2003. 7 The applicant seeks leave to appeal against his sentence for the 2002 offences on the basis that his Honour placed undue emphasis on general deterrence and failed to give sufficient weight to the applicant's subjective factors. Implicit in that ground is the unstated premise that the sentences were manifestly excessive. 8 The circumstances of the offences were as follows. The applicant and another person had met the victim at a hotel and then subsequently accompanied the victim home. During the course of the evening the victim noticed that $60 had been taken from his wallet. He told the applicant and the other person to leave his home. 9 The following evening the applicant contacted the victim and arranged to meet at the victim's home for the purpose of returning the $60, which had been taken from the victim's wallet. While the applicant was at the victim's home he arranged for the victim to consume the drug Flunitoazepam in some tea which he had prepared. The victim slept until 9 am the next morning. There was evidence that the drug Flunitoazepam was a hundred times more potent that Valium. 10 While the victim was asleep, the applicant stole jewellery, a watch, a quantity of clothing, a black leather bag, a number of men's colognes and a portable CD from the flat, the value of which was in excess of $30,000. 11 A day or so later, the applicant in company with two other men disposed of some of the rings which he had stolen from the victim to a pawnbroker in relation to which $2,500 was loaned. The rings were subsequently identified as being the property of the victim. 12 The applicant was addicted to a number of drugs at the time of the offences. He had suffered traumas early in his life, including assaults while undergoing a period of incarceration in 1992. Those traumas may have aggravated or exacerbated his drug use. Whilst in the prison system, the applicant had taken steps to rehabilitate himself in relation to his drug use and was taking steps within that system to retrain himself vocationally by undertaking courses. 13 There was no evidence of any remorse on the part of the applicant. There were no discounting factors. 14 At the date of sentencing the applicant was thirty years of age. From the age of sixteen he has been dealt with in the Children's Court, Local Courts and the District Court. He received a full time custodial sentence on 15 June 1992 when sentenced to a fixed term of 9 months imprisonment for the offence of assault and rob with striking. 15 The aggravating factors in the offences, particularly the s38 offence, were clear. (i) The involuntary administration of a drug a hundred times more potent than Valium imposed a real risk to the victim's health and possibly his life. (ii) The crime was planned and premeditated. (iii) The applicant had gained the confidence of the victim so as to provide the opportunity of administering the drug. (iv) There was a significant element of callousness and cruelty involved. 16 The crime was a serious one and is so regarded by society. This is clear from the maximum penalty of 25 years provided for the s38 offence. Not only was there a question of general deterrence, as specifically referred to by his Honour, but also an issue relating to the protection of the community – "the primary objective of sentencing". 17 The observations of the court in R v Harrison (1997) 93 A Crim R 314 at 320 remain apposite: "Except in well defined circumstances such as youth or the mental incapacity of the offender … public deterrence is generally regarded as the main purpose of punishment, and the subjective considerations relating to the particular prisoner (however persuasive) are necessarily subsidiary to the duty of the courts to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who may otherwise be tempted by the prospect that only light punishment will be imposed." 18 The only subjective factors which arose were the traumas in the applicant's early life which may have aggravated his drug addiction, although as was pointed out, his drug addiction provides an explanation but not an excuse for the offences. There were also his efforts to rehabilitate himself and retrain himself vocationally while in the prison system. There was no evidence of remorse and no evidence that the applicant would not re-offend. 19 These subjective factors are a poor counterweight to those aggravating factors associated with the offences and the applicant's previous record of criminality. 20 As was pointed out by Hulme J in R v Dawson [2000] NSWCCA 399 at [54]: "The offence of administering the drug also required a salutary penalty in its own right. Of course in the circumstances it was appropriate to recognise that the applicant's purpose in administering the drug was primarily indecent assault and photography. However, having regard to the terms of, and the penalty prescribed by, s25 itself, there is no basis for concluding that the sole criterion for the determination of the appropriate penalty is the offender's ultimate object at the time of the drugs administration. It is for example, appropriate to recognise the insult to a victim of being rendered unconscious and helpless and of the benefit to an offender of being able to minimise detection for whatever he may choose to do to a victim in that state. It would be quite wrong to sentence the applicant for this offence merely on the basis of the criminality involved in any indecent assault that ensued." 21 I am of the opinion that the summary in his Honour's remarks on sentence at 6.5 was accurate and appropriate. " I find that the offender carefully planned to drug the victim and steal his property. The offender ingratiated himself to the victim and acted cruelly and callously without having regard to the danger in which he placed the victim when he provided the victim with the stupefying drug. This style of crime will not be tolerated by the community and the sentence I impose today will contain a strong element of general deterrence within it." 22 Similarly I find that the sentence of 7 years with a non-parole period of 5 years and 3 months imposed by his Honour was equally appropriate and that no error has been demonstrated in either the approach followed by his Honour or in the result achieved. 23 Accordingly, I would grant the application for leave to appeal but dismiss the appeal. The orders which I propose are: 1. Leave to appeal be granted. 2. The appeal to be dismissed. 24 SPIGELMAN CJ: I agree. 25 BARR J: I also agree. 26 SPIGELMAN CJ: The orders are as indicated by Justice Hoeben. ********** Last Modified: 09/24/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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