New South Wales Court of Criminal Appeal CITATION: Gunes v Regina [2007] NSWCCA 242 HEARING DATE(S): 6 August 2007 JUDGMENT DATE: 10 August 2007 JUDGMENT OF: McClellan CJ at CL at 1; Howie J at 2; Harrison J at 3 DECISION: Leave to appeal granted. Appeal allowed. Quash the sentence imposed by Sorby DCJ and in lieu thereof sentence the applicant to a fixed term of imprisonment commencing on 22 September 2006 and expiring on 6 August 2007. CATCHWORDS: CRIMINAL LAW – sentence appeal – malicious damage to property by fire - objective gravity of offence – whether sentencing judge had proper regard to offender's limited degree of participation in crime – whether sentence imposed manifestly excessive LEGISLATION CITED: Crimes Act 1900 - ss 112(1), 195(1)(a) & (b) Crimes (Sentencing Procedure) Act 1999 - s 21A Lowe v R (1984) 154 CLR 606 R v Burns [2007] NSWCCA 228 CASES CITED: R v De Simoni (1981) 147 CLR 383 R v Gould [1999] NSWCCA 177 R v Ponfield (1998) 48 NSWLR 327 R v Saad [2007] NSWCCA 98 PARTIES: Ozcan Gunes (Appellant) Regina (Respondent) FILE NUMBER(S): CCA 2007/1038 COUNSEL: T A Game SC and A Djemal (Applicant) M L Barr (Respondent) SOLICITORS: Christopher Raheb, Oxford Legal (Applicant) S Kavanagh, Solicitor for Public Prosecutions LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/11/0938 LOWER COURT JUDICIAL OFFICER: Sorby DCJ LOWER COURT DATE OF DECISION: 22 September 2006 (date of sentence) - 14 - IN THE COURT OF CRIMINAL APPEAL 2007/1038 McCLELLAN CJ at CL HOWIE J HARRISON J 10 August 2007 OZCAN GUNES v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Harrison J. 2 HOWIE J: I agree with Harrison J. 3 HARRISON J: On 6 August 2007 this Court made the following orders:- (1) Leave to appeal is granted. (2) Appeal allowed. (3) Quash the sentence imposed by his Honour Sorby DCJ and in lieu thereof sentence the applicant to a fixed term of imprisonment commencing on 22 September 2006 and expiring on 6 August 2007. 4 My reasons in support of the making of those orders are set out below. Introduction 5 On 15 June 2006 the applicant entered a plea of guilty in the District Court of New South Wales to a charge of malicious damage to property by fire. This is an offence under s 195(1)(b) of the Crimes Act 1900 and carries a maximum penalty of 10 years in prison. The standard non-parole provisions do not apply to this offence. 6 The applicant came before his Honour Sorby DCJ on 22 September 2006 for sentence. His Honour was asked to take into account a further charge of malicious damage on a Form 1. This is an offence under s 195(1)(a) of the Crimes Act 1900 and carries a maximum penalty of 5 years in prison. The standard non-parole provisions do not apply to this offence either. 7 The applicant was sentenced to a term of imprisonment of 4 years commencing on 22 September 2006 and expiring on 21 September 2010 with a non-parole period of 2 ½ years. The applicant will be eligible for release on 21 March 2009. 8 The applicant seeks leave to appeal to this Court upon the following grounds: - Ground 1: His Honour erred in imposing a sentence on the applicant by determining the objective gravity of the offence based on the consequences of the offence and conduct of the co-offender without having proper regard or making any appropriate assessment in relation to the limited degree of participation of the applicant in the crime. Ground 2: His Honour erred in not giving sufficient weight to the applicant's contrition and the cooperation and assistance provided by him to the authorities. Ground 3: The sentence is manifestly excessive. Background 9 The facts were agreed for the purposes of the sentencing proceedings. They are relevantly set out hereunder. 10 At the date of the offence on 28 December 2004 the applicant was 26 years of age and was the son-in-law of Ergun Besir. Mr Besir was the proprietor of a restaurant at Hunters Hill in Sydney which he had purchased in September 2003. Mr and Mrs Paton owned the restaurant premises and the lease was due to expire in April 2005. In early 2004 Mr and Mrs Paton calculated that the rent for the restaurant should be substantially increased. On 19 December 2004 Mr Besir increased the total insurance cover for the restaurant from $240,000 to $625,000. The restaurant was open on Christmas Day 2004 until about 5.00pm. It then closed for the holiday period. 11 The applicant had neither a financial interest in the restaurant nor any other financial connection with Mr Besir. 12 On the morning of 26 December 2004 Mr Besir and his wife drove to Coffs Harbour to stay at rented premises for a holiday. The applicant and his wife - Mr and Mrs Besir's daughter - drove in their own vehicle to Coffs Harbour to join them. 13 On 27 December 2004 Mr Besir decided to return to Sydney. He told the applicant that he wanted to retrieve a quantity of cash that had been left in the safe inside the restaurant. Mr Besir said that there had been a number of functions in the restaurant during the pre-Christmas period and there was a significant amount of cash at the premises. He told the applicant that he was uneasy about leaving the cash there. Mrs Besir asked the applicant to travel to Sydney with Mr Besir in order that he could do the return driving to Coffs Harbour. 14 At about 1.00am on 28 December 2004 Mr Besir parked his car in Mount Street Hunters Hill near the Hunters Hill Private Hospital. Mr Besir was wearing dark jeans and a dark jacket. The applicant was wearing blue jeans and a grey tracksuit top. Mr Besir got out of the car and went to the restaurant. The applicant stayed in the car. Mr Besir was not carrying anything when he left the car. Surveillance cameras had been sprayed with paint. 15 After about 15 minutes, the applicant became concerned about the delay. He went to the car park and entered the restaurant through the kitchen door which was open. On entering the kitchen the applicant observed that there was no one there. However, he could smell petrol. He started calling out "Dad" in Turkish, and then entered the bar area through the kitchen door. He saw Mr Besir splashing petrol around from a jerry can. There was a powerful smell of petrol fumes. An argument then took place between the applicant and Mr Besir. The applicant said to Mr Besir in Turkish: "What are you doing?" The applicant realised Mr Besir was splashing petrol around in order to ignite the premises. Mr Besir told the applicant to "shut up". The applicant then said to Mr Besir, "Okay, what you want me to do?" Mr Besir passed the applicant a jerry can that was in a laundry bag. The applicant left Mr Besir in the bar area splashing petrol around and returned to the kitchen. The applicant placed the jerry can there next to two others. He then removed the jerry cans from the bar so as to keep them away from the ignition point. The applicant then waited just outside the rear door. 16 The applicant was assisting Mr Besir in the ignition of the premises. He waited inside the kitchen while Mr Besir ignited the fire. The applicant did not see the fire lit. 17 Local residents heard the sound of breaking glass and of two male voices speaking in a foreign language shortly before the fire broke out. A fierce fire that also damaged a residential property next door gutted the entire building. Damage to the next-door property was the subject matter of the charge on the Form 1. 18 Shortly after the fire started the applicant telephoned his cousin and asked him to come to the restaurant to "do me a favour". The applicant wanted his cousin to pick him up. At that time Mr Besir was standing next to the applicant. The purpose of the telephone call was for the applicant to be taken away from the area and away from Mr Besir. Mr Besir spoke to the applicant's cousin. However, by the time he arrived in the area the applicant and Mr Besir had already left, travelling to their home in Sydney. The applicant told Mr Besir that he wished to go to his home and did not wish to return to Coffs Harbour. Upon entering the premises, the alarm was activated and the police were summoned. 19 Mr Besir drove back to Coffs Harbour with the applicant as a passenger on the same day. On 29 December 2004 Mr Besir attended Gladesville police station and then the scene of the fire. He showed police a hole in the ground where he claimed that a safe containing $10,500 had been secreted. 20 The applicant flew from Sydney to London on 29 December 2004. He wished to distance himself as much as possible from Mr Besir and from the investigation surrounding the fire. While the applicant was away, Mr Besir called him to say that the police wished to speak to him to verify Mr Besir's whereabouts at the time of the fire. The applicant returned to Australia on 10 January 2005. On 19 January 2005 police interviewed Mr Besir who claimed to have been Coffs Harbour at the time of the fire. His wife supported him in this alibi. After being interviewed by police, Mr Besir left Australia and flew to Cyprus where he remains. 21 Police interviewed the applicant on the morning of 20 January 2005. In the ERISP he denied knowing how the fire started and denied lighting the fire himself. He flew out of Australia the same day because he was fearful of getting into trouble and he knew that he had told lies in his ERISP. He returned to Australia on 4 May 2005 when he was arrested and charged. Prior to his return to Australia the applicant was in contact with his solicitor who in turn had been in contact with the police. The applicant returned to Australia to face allegations against him. 22 Mrs Besir was charged with hindering a police investigation. She pleaded guilty to this charge and was sentenced by a magistrate on 6 April 2005. She was placed on a s 9 Bond. She immediately left Australia bound for Cyprus. 23 The applicant had spent no time in custody in connection with this matter prior to the date that he was sentenced. He offered to assist police in their enquiries in relation to Mr Besir, including his whereabouts and identity. Remarks on sentence 24 His Honour effectively commenced his remarks on sentence as follows: - "Now the object of punishment is a protection of society, retribution, rehabilitation and deterrence, both specific and importantly in . . . cases such as these, general deterrence to send a message to like minded persons in the community that such activities will be met with condign punishment." 25 His Honour referred to subjective factors in the applicant's favour. He was brought up, largely in England, in a warm and supportive family. Although he never knew his father, he had a close relationship with his mother and eldest siblings. His Honour observed that the applicant's family and friends were in court to support him. 26 The applicant was born on 8 June 1977 and attended school to the equivalent of year 12 in the United Kingdom. He has always been in regular employment, or self-employed, as a painter and decorator by trade. A number of impressive testimonials were tendered on his behalf dealing with his work record and his good character. 27 The applicant had been married to Mr Besir's daughter for only three months prior to the date of the fire. That marriage came to an end following the fire, apparently as a result of the fact that the applicant's wife chose to offer continuing support to her father rather than to her husband. 28 His Honour noted that the applicant was very sorry for the victims whose property was damaged and he said so in evidence. He also expressed his shame for what he had done to his family. The applicant said that he had an opportunity to walk away from the scene but chose not to do so. The applicant said that he had committed the offence out of a wrong sense of loyalty to his family. 29 His Honour observed that the applicant had offered to assist the police to locate Mr Besir, including an offer to testify against him should he ever be brought back to Australia. His Honour accepted that the applicant had provided information about Mr Besir to the police and that he would give evidence against him if required. 30 His Honour noted that the Crown offered the applicant a plea on 6 June 2006, which he accepted on 15 June 2006. His Honour gave the applicant a 20 per cent discount for the utilitarian value of that plea. His Honour observed that the applicant had no criminal record and that any custodial sentence would be his first experience of prison. His Honour expressed the opinion that, by reason of that fact and of the applicant's age, there were special circumstances that enabled him to vary the statutory ratio. 31 His Honour then turned specifically to consider factors under s 21A of the Crimes (Sentencing and Procedure) Act 1999 to which he had not by then already referred. His Honour accepted in mitigation that, as far as the applicant was concerned, what happened was not part of any planned or organised criminal activity on his part. In aggravation of the offence, his Honour found that it was committed without regard to public safety. His Honour observed that the fire was ignited using a large quantity of petrol on the ground floor of a building in a residential street and next door to a residence that was also damaged by the fire. The damage to property was in the vicinity of $1.5 million. His Honour said: "The offence is objectively serious. . . The fire was wanton and the only explanation by the [applicant] was that he felt obligated to assist his father-in-law, the instigator of the offence. When the [applicant] first came to the restaurant according to the agreed facts the [applicant] was told by Mr Besir to shut up. The [applicant] then asked okay what do you want me to do before starting to assist Mr Besir and move the jerry cans. At that stage the [applicant] must have known what was to occur and he did nothing to prevent the building being set alight by Mr Besir." 32 His Honour then reaffirmed the importance of general deterrence in such cases and that the community, through the legislature, had set a maximum penalty of 10 years for the offence. He then continued as follows: "There are strong subjective factors in the [applicant's] favour which must be balanced against the crime's objective seriousness. Weighing up both factors in taking into account the plea, the [applicant's] prior good character and the need for general deterrence and all other matters in evidence put before me whether I have specifically referred to in these remarks or not, I consider a full-time period of custody appropriate in all the circumstances. It was submitted the subjective factors are such that any period of full-time custody should be suspended or structured so that it is served by way of periodic detention. However, the objective seriousness of the offence and the value of the properties damaged lead me to conclude that full-time custody is the only option, notwithstanding the strong subjective factors. I have also taken into account the matter on the form one. I consider the appropriate period of non-parole to be two and a half years with a further period of eighteen months parole." The applicant's submissions 33 In support of Ground 1, it was submitted that his Honour's remarks on sentence quoted at par [29] did not adequately capture the limited role played by the applicant. It was submitted that the applicant unwittingly found himself in an awkward, if not impossible, situation where his father-in-law was in the process of committing a very serious offence which provoked an argument when the applicant realised what was happening. It was only after this that the applicant became involved. It was submitted that the totality of the applicant's offending was to remove two jerry cans from the bar area so as to keep them away from the ignition point and to wait outside the rear door of the premises. In evidence the applicant said, when asked to explain what caused him to take part, "I realised it was a false and wrong sense of loyalty and I assumed that - I know it sounds strange but that's - that must be the way it is in family through ..." 34 It was submitted on behalf of the applicant that, in effect, the giving of very limited assistance in the circumstances identified wholly circumscribed the applicant's culpability. No other assistance or encouragement was alleged and there was no further or other culpability of the applicant to be measured. It was submitted that it was fundamental that an offender can only be sentenced for the part actually taken by the offender in the commission of an offence. It was conceded that that included the consequences of any active assistance. See, generally, R v De Simoni (1981) 147 CLR 383 at 389; Lowe v R (1984) 154 CLR 606 at 609. 35 Counsel for the applicant referred in some detail in written submissions to an exchange that took place between his Honour and his counsel at the sentencing hearing. It is unnecessary to repeat the quoted exchanges for present purposes. However, it is submitted in this Court that his Honour's characterisation of the offence with which the applicant was charged as "serious, very serious" was erroneous, particularly having regard to his remarks on sentence quoted at par [30] above. His Honour's exchange with counsel also included the words "Financial gain, benefit to a person to whom he is related". There was, of course, no agreement, or other evidence to establish, that the applicant stood to benefit financially from the events in which he participated. 36 In support of Grounds 2 and 3, the applicant's submission was limited to a re-affirmation of the significance of his contrition and the cooperation and assistance provided to the authorities. It was also the submitted that there was strong evidence of remorse before his Honour to which he failed to refer. 37 Having regard to the imposition of a head sentence of 4 years, and a 20 per cent discount for the utilitarian value of the plea, the applicant submitted that his Honour must have had in mind a head sentence of at least 5 years. Leaving aside the factors taken into account by his Honour as special circumstances, the offer of assistance and other subjective factors, and prior to any discount for the plea of guilty, the sentence which his Honour had in mind before any allowance was made for contrition must have been well over 5 years. It was submitted that that indicated insufficient weight had been given to these factors by his Honour or alternatively that the starting point was too high. In all of the circumstances the applicant submitted that the sentence was manifestly excessive. The Crown's submissions 38 With respect to Ground 1, the Crown submitted that the value of the property damaged was a legitimate consideration in determining the objective seriousness of the offence. The Crown referred to s 21A(2)(g) of the Crimes (Sentencing and Procedure) Act 1999 that provides that if the loss or damage caused by the offence is substantial it is an aggravating factor. The Crown referred to the judgment of this Court in R v Ponfield where, in a slightly different context, the Court emphasised that the seriousness of an offence contrary to s 112(1) of the Crimes Act 1900 may be enhanced, with a corresponding effect upon the sentence imposed, if the offence is accompanied by vandalism or other significant damage to property or the monetary or sentimental value of the property to the victim is significant. 39 The Crown submitted that in sentencing the applicant his Honour properly took into account the significant damage to property and the value of the damage to that property in determining the objective seriousness of the offence. The Crown submitted that his Honour had proper regard to, and took into account, the limited involvement of the applicant in the circumstances of the case. 40 With respect to Grounds 2 and 3, the Crown emphasised that not only did the applicant assist Mr Besir on the night of the fire, but that after the fire he sought to distance himself and flew to London. Even though he returned to Australia in 10 January 2005, he was not truthful with the police in his record of interview on 20 January 2005, denying any knowledge of how the fire started. The applicant again flew out of Australia and did not return until 4 May 2005 when he was arrested and charged. Moreover, the Crown submitted that a 20 per cent discount for the applicant's plea of guilty was generous. 41 Although his Honour did not use the term "remorse" in his judgment, he did indicate during the sentencing hearing that he accepted "his remorse". In his remarks on sentence his Honour said: "The [applicant] is very sorry for the victims whose property was damaged and he said so in the witness box. He also expressed his shame for what he has done to his family. He said he had the opportunity to just walk away from the scene, but he did not. He said he committed the offence out of a wrong sense of loyalty to his family. The [applicant] initially left Australia after speaking to police and telling lies to the police of his involvement. He decided to return in May last year to face the charges and clear his name he said." 42 The Crown submitted that his Honour properly took into account, and gave the applicant credit for, "strong subjective factors" in his favour, his prior good record and the fact that "any gaol sentence will be his first experience of prison". His Honour found special circumstances, allowing him to vary the statutory ratio. 43 The Crown submitted that a starting point in excess of 5 years was appropriate in the circumstances of the present case. The Crown submitted that, even if the true starting point adopted by his Honour were 6 years, it would nonetheless have been appropriate. There was no patent error in his Honour's approach to sentencing the applicant. 44 His Honour indicated in his remarks on sentence that he had taken into account the matter on the Form 1. The Crown submitted that in these circumstances it could be assumed that this was reflected in the sentence actually imposed. The Crown referred to R v Gould [1999] NSWCCA 177 at [15] as follows: ". . . the inclusion of the two serious offences on the schedule was a matter his Honour was required to reflect in the sentence imposed on count 2: R v Morgan (1993) 70 A Crim R 368 at 371-372." 45 The Crown also referred to what Hoeben J said in R v Saad [2007] NSWCCA 98: " [37] For this Court to quash a sentence and impose a lesser one, it is not sufficient for the applicant to establish error. It is necessary that this Court be satisfied that "some other sentence . . . is warranted in law and should have been passed" - subsection 6(3) of the Criminal Appeal Act 1912 , R v Simpson (2001) 53 NSWLR 704 at [79] and [99–100]." 46 The Crown submitted that no error of law on the part of the sentencing judge had been demonstrated. It was further submitted that in the circumstances, given the objective seriousness of the offence, the maximum penalty of 10 years, and the need to take into account the matter on the Form 1, the sentence imposed by his Honour was within the legitimate range of his Honour's discretion and that no lesser sentence is warranted in law. Consideration 47 In R v Burns [2007] NSWCCA 228, the following appears at par [36]: "There is often a fine line between those cases in which a sentencing judge can be shown to have failed properly to exercise a discretion reposed in her or him, having regard to the relevant legislative constraints and current judicial guidance, on the one hand, and those cases in which the discretion has patently been exercised in a way that balances and accommodates all the manifold competing circumstances and influences, on the other hand. Views on sentencing outcomes will almost always vary, depending significantly, although not exclusively, upon the perspective of the commentator." 48 There is no doubt that in the present case the applicant was entitled to the benefit of a strong subjective case. The nature of this case has been comprehensively referred to already. The question is whether or not this Court can be satisfied that his Honour properly or adequately took these subjective factors into account or had due and proper regard for them. 49 One factor given little, or at least little relevant, consideration is the extent to which the applicant was himself the victim of circumstances that he had no proper opportunity to anticipate, and which were therefore circumstances over which in a real and practical sense he had no control. It is not in dispute that the applicant played no part in the planning of his father-in-law's criminal enterprise. The commencement of the applicant's involvement in that enterprise wholly coincided with the first and only opportunity he had to consider it and to reject it. Mr Besir was by then well advanced in the execution of acts central to the commission of his own crime. Significantly in my opinion, Mr Besir must be taken originally to have intended to carry out his plan not only without his foreknowledge, but wholly without the applicant's assistance. So much is clear from the agreed fact that the applicant remained waiting in the car for a period of 15 minutes until concern for his father-in-law drew him into the premises. There is no suggestion that the applicant knew, or had any reason to suspect, what Mr Besir intended to do until he confronted him in the act of doing it. Moreover, it would appear probable, to a degree approaching certainty, that Mr Besir's plan to destroy the property would have succeeded whether the applicant had become involved or not. 50 His Honour undoubtedly formed the view that a very serious crime had been committed, which led to the destruction of a very valuable property. In terms of assessing the objective criminality of the offences that led to this result however, it is not possible, in my opinion, to disregard the objective criminality of acts performed by Mr Besir or to fail to compare them with the relevant acts of the applicant. I accept that, just as the applicant has not sought to canvass his plea, so it is important that this Court not disregard that plea as a significant factor in forming an objective view about the degree of criminality attaching to what he did. By the same token, it is important that the objective seriousness of the acts apparently performed by Mr Besir not be permitted to confuse or to confound a properly independent consideration of the true criminality of the applicant's own conduct. 51 The applicant was placed without notice in what amounted to an almost irreconcilable conflict. Ironically, the applicant's misguided loyalty to his father-in-law has led to the complete loss and destruction of his young marriage and membership of the family he had just joined. In the events which occurred, the applicant will now be burdened with the stigma of a serious criminal conviction, notwithstanding that he came from a background without blemish and would appear unlikely ever to have offended but for his fortuitous involvement in the present circumstances. This may well adversely affect his future employment prospects as well. 52 Having regard to all of these matters, the sentence imposed by his Honour was manifestly excessive. Some other sentence was warranted in law and should have been passed. ********** 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.