New South Wales Court of Criminal Appeal CITATION : Regina v DEMIROZ [2004] NSWCCA 334 HEARING DATE(S) : 27 September 2004 JUDGMENT DATE : 27 September 2004 JUDGMENT OF : Wood CJ at CL at 1, 17; Barr J at 2; Hoeben J at 16 DECISION : Grant leave to appeal but dismiss the appeal. PARTIES : Regina v Muammer DEMIROZ FILE NUMBER(S) : CCA 2004/1877 CCAP COUNSEL : Applicant: A Francis Respondent: G I O Rowling SOLICITORS : Applicant:S O'Connor Respondent: S Kavanagh LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0493 FILE NUMBER(S) : LOWER COURT Gibson QC DCJ JUDICIAL OFFICER : - 4 - IN THE COURT OF CRIMINAL APPEAL 2004/1877 CCAP Wood CJ at CL Barr J Hoeben J 27 September 2004 Regina v Muammer DEMIROZ Judgment 1 Wood CJ at CL: I agree with Barr J. 2 Barr J: this is an application for leave to appeal against what is said to be the severity of sentences imposed in the District Court. The applicant, Muammer Demiroz, pleaded guilty on 22 September 2003, the day on which his trial was fixed to commence, two offences which might be summarised as follows – 1 That on or about 10 May 2001 at Lidcombe he broke and entered a certain dwelling house and stole certain property, namely a hand bag containing credit cards, cheque books and other personal items, a set of keys and a television receiver; 2 At the same time and place he broke and entered a second dwelling house and stole a guitar, a DVD player, a tripod, a video recorder and a Polaroid camera; and 3 At the same time and place he drove a certain motor vehicle knowing that it had been taken without the consent of the owner. 3 On the afternoon of Wednesday 9 May 2001 the applicant stole a Toyota Tarago vehicle which had been parked in front of its owners house. He went to another house in the same suburb, removed the fly screen from the kitchen window and slid open the window. He entered the house and stole the goods I have mentioned. He put them into the vehicle and drove it along to the next house. He got into that one by getting through the rear security door. He stole the property I have mentioned and took it away in the vehicle. As he was about to drive away neighbours, who had been watching what he had been doing, ran up and stopped him. There was a struggle and the applicant received some injuries. The public-spirited neighbours called the police and the applicant was arrested He was taken to hospital in the first place, however, and was found to be suffering concussion. Eventually he was taken to the police station and charged. He declined to be interviewed. 4 The applicant committed the offences to raise money to buy drugs. He was born on 20 June 1956, so he was not far short of his forty-ifth birthday when he committed these offences. He has been addicted to the use of illegal drugs since he was a school. He has a long record, dating back to the 1970s, of drug and the usual associated property offences like stealing, possessing stolen goods, breaking and entering, receiving and disposing of stolen goods. He has served many periods of full time imprisonment. 5 In an effort to turn himself around he managed to get entry into the drug court merit program and progressed as far as stage two. However, he missed methadone doses, attended appointments late and took illegal drugs. He lost his place in the program. He felt that the Drug Court was unreasonably harsh in its attitude towards his shortcomings and drifted back into his old life. 6 The applicant had stood trial before on charges arising out of the same incidents but the charges were more serious in that the two counts of breaking entering and stealing were charged in an aggravated form. The applicant was convicted but successfully appealed to the Court of Criminal Appeal, which quashed the convictions. This was to have been the retrial. 7 The sentencing judge imposed a fixed two-year term on the first count and concurrent five-year terms on each of the breaking and entering counts. On each of those he fixed a non-parole period of three years and nine months. 8 There are three grounds of appeal. The first two may be considered together. They are – 1 The sentencing judge made erroneous findings of fact in considering the applicant's prospects of rehabilitation; 2 The sentencing judge erred in considering whether special circumstances existed. 9 Defence counsel invited the sentencing judge to find that there were special circumstances justifying the fixing of a period of parole that exceeded one quarter of the effective sentence. His Honour considered the matter but thought that circumstances did not justify such as approach. His Honour used these words – I am not satisfied that he is a person who is likely to rehabilitate at this stage or whos prospects of rehabilitation are sufficient to enable me to find special circumstances and I do not propose to find special circumstances in this case. 10 That statement was attacked on appeal as applying the wrong principle. The submission was that the question whether the circumstances of the case justify an increase of the parole period at the expense of the non-parole period has to be answered by reference to all the circumstances of the case, not merely prospects of rehabilitation. Reference was made to R v Simpson [2001] NSWCCA 534. It was submitted that there were other circumstances capable of being seen as special for relevant purposes, namely that the sentences were accumulated upon an existing sentence of about ten months, commencing on 10 May 2001. Bringing that sentence into account, it was calculated that the effective non-parole was seventy-nine per cent of the total period of all the sentences. 11 I am not satisfied that his Honour failed to have in mind the accumulation upon the existing sentence. In fact his Honour expressly said so. His Honour really considered the prospects of rehabilitaion quite bleak and was bound to have regard to the interest of the community. A non-parole period for these offences of three years nine months or, for all the offences, of four years seven months, was well within the range of discretion for a repeat offender with such a serious record. I do not think that these grounds of appeal have been made good. 12 The third ground of appeal asserted that his Honour had insufficient regard to the applicant's subjective case, resulting in a sentence which was manifestly excessive. The applicant was forty-seven years old when sentenced. He said that he was remorseful. A psychologist, Dr Lennings, whose report was tendered, said that he had a strong desire to stop using drugs, was oriented to employment and had had an opportunity for stable accommodation. Whilst his psychological adjustment was "vulnerable" it was not so poor that he could not respond to rehabilitation. 13 His Honour noted that the applicant had not given evidence and expressed in a delicate way that he had difficulty in accepting at face value the things the psychologist was reporting second-hand. 14 The submission was that the subjective case was strong and that that, together with the effect of accumulation and the earlier efforts to solve the applicant's drug problem, made the sentences manifestly excessive. 15 I do not agree. The subjective features were not strong. In fact the prospects were poor in view of the applicant's long history and his failure to take advantage of opportunities offered to him through the Drug Court program. In my opinion the sentences were well within the range of his Honour's sentencing discretion. 16 I would grant leave to appeal but would dismiss the appeal. 17 Hoeben J: I agree with Barr J. 18 Wood CJ at CL: The orders are as proposed by Barr J. ************ Last Modified: 10/15/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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.