New South Wales Court of Criminal Appeal CITATION: R v Terkmani [2009] NSWCCA 142 HEARING DATE(S): 29 April 2009 JUDGMENT DATE: 11 May 2009 JUDGMENT OF: Grove J at 1; Buddin J at 2; Price J at 3 DECISION: Appeal dismissed CATCHWORDS: CRIMINAL LAW - SENTENCING - CROWN APPEAL - whether sentence manifestly inadequate - whether correct maximum penalty taken into account - offence contrary to s 112(2) of Crimes Act - whether error in characterisation of objective seriousness of offence - whether general deterrence taken into account - whether threatened use of a weapon taken into account as an aggravating factor LEGISLATION CITED: Crimes Act 1900 s 112(2) Crimes (Sentencing Procedure) Act 1999 s 3A, s 21A(2)(c), s 9 CATEGORY: Principal judgment House v King (1936) 55 CLR 499 Markarian v The Queen (2005) 79 ALJR 1048 MLP v Regina [2006] NSWCCA 271 R v Johnson [2004] NSWCCA 140 CASES CITED : R v Wall [2002] NSWCCA 42 R v Way (2004) 60 NSWLR 166 Regina v Joel Tory; Regina v Luke Tory [2006] NSWCCA 18 Regina v Millar [2005] NSWCCA 202 Regina v Price [2005] NSWCCA 285 Regina v Shankley [2003] NSWCCA 253 Crown (Applicant) Abdullah Terkmani (Respondent) PARTIES: FILE NUMBER(S): CCA 2007/14794 COUNSEL: P Miller (Crown) M Ramage QC (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2007/14794 LOWER COURT JUDICIAL OFFICER: Cogswell SC DCJ LOWER COURT DATE OF DECISION: 14 November 2008 IN THE COURT OF CRIMINAL APPEAL 2007/1479 GROVE J BUDDIN J PRICE J 11 May 2009 R v TERKMANI Judgment 1 GROVE J: I agree with Price J. 2 BUDDIN J: I agree with Price J. 3 PRICE J: This is an appeal by the Crown against what is said to be the manifest inadequacy of a sentence imposed upon the respondent in the District Court at Parramatta on 14 November 2008. 4 The respondent had pleaded not guilty to a single count on an indictment that [he] on 15 December 2004 at Oxley Park did break and enter a dwelling house situated at 71 Canberra Street, and did commit a serious indictable offence therein, namely, assault Dean Phillips, thereby occasioning to him actual bodily harm, in circumstances of aggravation namely, at the time the said Abdullah Terkmani was in company with an unknown male. This was an offence contrary to s 112(2) of the Crimes Act 1900. On 25 August 2008, the jury returned a verdict of guilty. 5 The Judge sentenced the respondent to a term of imprisonment consisting of a non-parole period of 2 years commencing on 27 August 2008 and expiring on 26 August 2010 with a balance of term of 2 years commencing on 27 August 2010 and expiring on 26 August 2012. 6 An offence contrary to s 112(2) is punishable by 20 years imprisonment. A standard non-parole period of 5 years imprisonment applies. 7 There is one ground of appeal which is that the sentence is manifestly inadequate. The Crown submitted that there were a number of discrete errors by the Judge which provide some explanation for the manifest inadequacy of the sentence. The Crown argued that: (i) His Honour was in error as to the applicable maximum penalty. (ii) His Honour was in error in finding that this offence did not fall within the middle of the range of objective seriousness but fell below it and thus was in error in departing from the standard non-parole period on that basis. (iii) His Honour was in error in not taking into account as an aggravating factor the threatened use of a weapon. (iv) His Honour failed to reflect general deterrence in the sentence. (v) His Honour placed too much emphasis on the respondent's youth and prospects of rehabilitation. None of these matters were advanced by the Crown as separate grounds of appeal. FACTS 8 When sentencing the respondent, the Judge found the following facts (ROS 1-2): "It was about 7.30 on the night of 15 December 2004. Dean Phillips was at home with a friend, Kristina Wren. Mr Philips' house mate, Anthony Halliwell was away for the weekend. Mr Phillips heard the front door bell ring. He ignored it. It kept ringing. Mr Phillips looked through the front window and saw a man – the jury found beyond reasonable doubt that it was Abdullah Terkmani – standing outside the house. He was standing there with somebody else. Mr Phillips recognised neither of them. The men were demanding to know where Tony Halliwell was. Mr Phillips told them to go away and that he was going to call the police. What happened then must have been a shocking experience for both Mr Phillips and Ms Wren. It is a householder's nightmare. Mr Terkmani went next and got a brick from a pile of bricks. He threw it through the front window of Mr Phillips' home. He then produced a knife. He tried to get into the house through the broken window. The other man stayed on the porch while this was happening. Mr Phillips tried to resist Mr Terkmani getting in. The other man helped by pulling the curtain back. Mr Terkmani got in. He demanded that Mr Phillips open the door for his accomplice. Mr Phillips did so, opening the back door. The other man came in. Then they both started punching Mr Phillips with their fists. Mr Phillips fell to the ground and they continued to assault him. The result of the assault was that Mr Phillips ended up with a black eye, a bleeding nose and a tooth that went through his top lip. This left him with blurred vision and a sore jaw. The men kept looking for Anthony Halliwell. The other man produced a syringe. He demanded that Mr Phillips and Ms Wren remove their shirts but they refused. Mr Terkmani who was in another part of the house came back at that time and suggested that they leave. The other man threatened the two with the syringe but then left with Mr Terkmani. A neighbour called the police who arrived a short time afterwards. Mr Terkmani got away but was detected to be the offender because he had left DNA on the brick." Respondent's subjective case 9 The respondent, who was born on 9 May 1985, was 19 years at the time of the commission of the offence and 23 years old at the time of sentence. He did not give evidence during the proceedings on sentence and his subjective case was placed before the Judge by way of the tender of a Probation and Parole Pre-Sentence report. The report disclosed that the respondent was raised by his parents in a stable family environment. He left school in Year 10 but later completed a panel beating course at TAFE. The respondent had maintained relatively consistent employment as a panel beater. The respondent's employer considered him to be a reliable and competent employee and was prepared to offer him a full time position upon finalisation of the court proceedings. 10 Ms Lalopoulos, the author of the report, stated that the respondent continued to maintain his innocence. She opined that the respondent had positive familial support and the support of the previous employer. The respondent, she stated, had displayed a degree of naivety when discussing the seriousness of the offence. He had strong work and family ethics. 11 The respondent's criminal history relevantly reveals convictions at Fairfield Local Court on 21 July 2003 for offences of assault officer, resist police officer and intimidate police officer. For each offence, the respondent was convicted and ordered to perform 100 hours community service. On 24 September 2007, the respondent was convicted at the Gosford Local Court for an offence of assault occasioning actual bodily harm and placed on a good behaviour bond for 2 years under s 9 of the Crimes (Sentencing Procedure) Act 1999. This offence was committed after the offence the subject of this appeal. Dealing with the Appeal 12 The first discrete error alleged by the Crown is that the Judge stated in his sentencing remarks that the offence carries a maximum penalty of 14 years imprisonment whereas the maximum penalty is 20 years imprisonment. The Crown contended that although his Honour indicated that the main issue he needed to resolve in the sentencing exercise was whether or not he was to apply the standard non-parole period, it was of some consequence to the sentencing exercise that his Honour started his deliberations with this fundamental error. 13 The transcript records that the Judge said (ROS at 1): "I am sentencing Abdullah Terkmani for a very serious crime. The crime is aggravated break enter and commit serious indictable offence. The serious indictable offence is assault occasioning actual bodily harm. The crime is against s 112(2) of the Crimes Act 1900. The crime carries a maximum sentence fixed by Parliament of fourteen years imprisonment. Not only that, Parliament has fixed to this crime what is called a standard non-parole period. The standard non-parole period for this crime is five years." 14 The respondent, however, did not concede that the transcript was accurate as neither the Crown nor the respondent's counsel had remarked on the asserted error at the time of sentence. Alternatively, if the transcript was accurate, the respondent argued that it could not be assumed that the Judge structured the sentence around the wrong figure as specific reference had been made by the Crown and defence counsel to the correct maximum penalty of 20 years imprisonment during the proceedings on sentence. 15 The transcript of the Judge's remarks on sentence before this Court records that the remarks have been "revised". The usual practice is for a sentencing judge to be given the opportunity to peruse a draft of his sentencing remarks to ensure that it accurately reflects what was said and to revise the draft to remove imperfections. When that has been done, the transcript is marked "revised". It is evident that the usual practice has been adopted in this case and this Court is entitled to act on the basis that the transcript correctly records what was said by his Honour. 16 The Crown and counsel for the respondent drew his Honour's attention to the maximum penalty of 20 years imprisonment during sentencing submissions on 7 November 2008. The respondent was not sentenced until 14 November 2008. His Honour's remarks on sentence were not delivered ex-tempore but were reserved. Notwithstanding the correct identification of the maximum penalty by counsel, I do not think that his Honour's incorrect announcement was a matter of inadvertence. In my respectful opinion, the Judge erroneously had in mind that the maximum prescribed penalty for the offence was 14 years imprisonment when he came to impose sentence. 17 His Honour correctly identified the standard non-parole period as being 5 years and said (ROS at 1): "The main issue that I need to resolve in sentencing Mr Terkmani is whether or not I apply the standard non-parole period." 18 It seems that the Judge's concentration on the standard non-parole period diverted his attention away from the maximum penalty. Sentencing Judges should bear in mind that consideration of the correct maximum penalty is not made irrelevant by the presence of a standard non-parole period and is fundamental to a determination of the appropriate sentence to be imposed: Regina v Shankley [2003] NSWCCA 253. The standard non-parole period is but one aspect of a sentence: MLP v Regina [2006] NSWCCA 271. The maximum penalty serves as a yardstick or a basis of comparison between the case before the Court and the worst possible case: Markarian v The Queen (2005) 79 ALJR 1048 at [31]. 19 The next criticism by the Crown was his Honour's characterisation of the offence as being "just below the middle of the range of objective seriousness". The Crown argued that it was not open to the Judge on the evidence to come to that conclusion. Another complaint was that his Honour did not take into account the threatened use of a weapon as an aggravating factor. It is convenient to deal with these arguments together. 20 During his sentencing remarks, the Judge recognised that he was obliged to consider where the offence lies on the scale of objective seriousness. There was, however, some confusion when he asked the Crown after commencing his remarks on sentence to identify the circumstance of aggravation that was "relied upon by the Crown in the prosecution." It seems that the Judge was referring to the circumstance of aggravation that was specified in the indictment which was that the offence was committed in company. The Crown appearing on sentence had not instructed in the trial and the following exchange occurred (ROS at 4): "Crown: But the notes I've got here was offender in company, offender knew persons in premises, knife, co-offender had a syringe, corporal violence -- His Honour: Okay, all right. Crown: Threatened use of a weapon, a knife" (italics added) The Judge then recommenced his remarks on sentence: "As will be apparent from the exchange which has just occurred I am not clear what the circumstance of aggravation was that was relied upon by the Crown before the jury but it could have been any one of a number of factors which [the Crown] has pointed to. They include the following ." (italics added) 21 The Judge then remarked that the offender: (a) was in company; (b) knew there were persons inside the house; (c) was armed with an offensive weapon; and that the offence: (d) was committed in the home of the victim; (e) was planned and regardless of the fact that it was not well planned as Mr Halliwell was not at home it was still not spontaneous or opportunistic. 22 The Judge took into account as part of the aggravating feature of the offence being committed in company that the co-offender produced a syringe. His Honour declined, however, to take that into account as a separate offensive weapon being used in the offence as he was not satisfied beyond reasonable doubt that the respondent knew that his co-offender had a syringe when they entered the house and was absent when it was produced. In his Honour's view this aspect of aggravation was modified a "little" by the fact that the respondent suggested that he and his co-offender leave the house. The Judge also expressly took into account that: (i) the actual offence committed was an assault occasioning actual bodily harm carrying a maximum penalty of 5 years imprisonment. (ii) the offence was committed over a relatively short period of time and was reasonably short in scope. (iii) there was clearly some motive for the two offenders looking for Mr Halliwell. There was a purpose in the offenders entering the house and in his Honour's recollection "that purpose may have been related to their opinion about the character or behaviour of Mr Halliwell." (ROS at 6) (iv) the brick being thrown through the window must have been a terrifying experience for the occupants. 23 The Judge then said: "With all those factors I need to determine where the case lies in the range of objective seriousness. My own impression when listening to the argument presented by Mr Gibson and Mr Todd was that this case clearly fell within the middle range of objective seriousness. However, I have since consulted some judgments of the Court of Criminal Appeal on this offence. Those judgments lead me to what I respectfully regard as the surprising conclusion that this offence does not fall within the middle of the range of objective seriousness but falls below it." 24 The Judge then discussed the decision of this Court in Regina v Joel Tory, Regina v Luke Tory [2006] NSWCCA 18 and said (ROS at 7): " In Mr Terkmani's case the offence was similarly of fairly brief duration, although perhaps not as brief as two minutes. I expect the infliction of the bodily violence was spontaneous and unplanned in the sense that the men announced before they came in that they were looking for Anthony Halliwell. Although the motivation in this case was not as clear it was in Tory's case, there is some similarity in that the men were focused on finding a man whom they regarded as having a bad character ." (italics added) 25 Whilst it is not entirely clear what his Honour meant by his reference to "a bad character", there was evidence in the trial that the respondent and his co-offender had been yelling before they broke into Mr Phillips' home "Where's Tony, Tony the woman basher." They were not referring to Mr Phillips but to Mr Halliwell. Mr Phillips repeatedly told them that Mr Halliwell was away at his girlfriend's place up the coast which the respondent and his co-offender ignored. 26 The Judge went on to discuss the decisions of this Court in Regina v Millar [2005] NSWCCA 202 and Regina v Price [2005] NSWCCA 285 and said: " But for those authorities I would have found that this offence fell within the middle of the range of objective seriousness. However, because the offence was committed over a relatively short period of time, because the planning was limited and the violence spontaneous, I regard the case as falling just below the middle of the range of objective seriousness." 27 The impact that the decisions of this Court to which his Honour referred had on the determination of where in the scale of objective seriousness the offence lay is surprising as there was a deal of difference between the motives for the home invasions in those cases and the respondent's offending. In Regina v Joel Tory; Regina v Luke Tory, the two offenders who broke into the house and assaulted the victim were motivated by the genuine belief that the victim had acted inappropriately towards the 14 year old sister of one offender and a genuine desire to protect her from criminal conduct (both sexual and drug use) that had the potential to cause significant harm. 28 In Regina v Millar, the motive for the offence was the offender's concern and anxiety for the welfare of his 18 year old daughter whom be believed was being assaulted by the victim a 38 year old man. In Regina v Price, the offender was motivated by the belief that the victim had assaulted his father. 29 In the present case, the victim had no relationship with the respondent and his co-offender. He had the misfortune to live in the same house as the person for whom the offenders were looking. There could be no justification whatsoever in the present case for the breaking into the home and the savage attack upon Mr Phillips. 30 A determination of where the subject offence lies on the scale of seriousness of an offence of its type is essentially one of fact and as such is reviewable in this Court only on the principles stated in House v King (1936) 55 CLR 499: see R v Johnson [2004] NSWCCA 140 at [36]. The Crown, as has been indicated, contends that the Judge's finding was not open on the evidence. Before further consideration is given to this issue, it is appropriate to consider whether the Judge failed to take into account as an aggravating factor the threatened use of a weapon. 31 The actual or threatened use of a weapon is an aggravating factor to be taken into account in determining the appropriate sentence for an offence: s 21A(2)(c) of the Crimes (Sentencing Procedure) Act. 32 During his testimony in the trial Mr Phillips relevantly gave the following evidence (T 20 25/8/08): " Q. And what did he [the respondent] do with the knife? A. He started waving it around, I grabbed my curtains. I was just waving the curtains around trying to keep it away and whatnot and he just kept on going. … Q. And you said that the person was waving the knife around and you were waving the curtains back? A. Yep." And further (T 21 25/8/08): " Q. Now I think you said that the person who threw the brick asked you to open the back door? A. Yeah he had – he was inside, he had the knife, holding the knife up to me and made me open the back door up to let the other fellow come in ." 33 There was ample evidence for the Judge to be satisfied beyond reasonable doubt that the respondent had used the knife to threaten the occupants of the house. The following exchange with the respondent's counsel during the sentencing proceedings indicates that his Honour was apprised of that fact (T 7-8 7/11/08): "His Honour: …And the objective features in this case include company, knowing someone was inside, it's not just breaking and entering and stealing the wallet or something. He's waving a knife and the co-offender produces a syringe. Todd: Yes His Honour: Now sure your client terminated the activity in the house but he didn't say "stop" which –you've just got him saying he said, "Let's go, let's go" and it's the home, it's the victims home. It's not a break and enter into some commercial premises. This guy's at home with his girlfriend and somebody climbs through a window waving a knife with somebody else who produces a syringe. … Todd: --- of course, he's waving the knife, he doesn't carry on with that to the extent that it could have happened which is to use that knife upon the people. So -- His Honour: That would be an example, you would say, of something which is -- Todd: Taking it higher. His Honour: Yes." 34 The Crown had earlier informed the Judge that as an aggravating feature, the offence involved the threatened use of a weapon, that entry was gained whilst the respondent "was waving the knife inside the window to force the victim back and away from the window to allow his entry." 35 In the passage quoted at [20] above, the Judge was reminded during his sentencing remarks of the threatened use of a weapon and in referring to the factors the Crown pointed to, his Honour used the words "included the following". Although he did not then expressly refer to the threatened use of a weapon as an aggravating factor, I am not persuaded that he failed to take that matter into account. 36 Notwithstanding the curious way that the Judge came to characterise the offence as falling just below the middle of the range of objective seriousness, I do no think that such a finding was not available to his Honour. No complaint was made by the Crown about his Honour's findings that the offence was committed over a relatively short period of time, the planning was limited and the violence spontaneous. Although other minds might differ about where on the scale of objective seriousness this offence lies, I am unpersuaded that the finding was not open on the evidence. 37 The Crown also argued that the Judge failed to reflect general deterrence in the sentence and pointed out that the Judge did not mention the need for general deterrence in his sentencing remarks. The Crown submitted that it appeared that the Judge failed to turn his mind to this consideration. 38 Another complaint by the Crown was that the Judge placed too much emphasis on the respondent's youth and prospects of rehabilitation. The Crown submitted that the Judge failed to mention that the respondent's prospects of rehabilitation would have to be guarded because he continued to maintain his innocence and had not expressed remorse. It was argued that this was a violent crime of considerable gravity which was committed by the respondent who was an adult. The respondent on the other hand submitted that the Judge was very experienced in criminal matters and there was no foundation for suggesting that his Honour failed to turn his mind to the question of general deterrence. The weight to be ascribed to the respondent's subjective matters, was, it was argued, a matter for the Judge in the exercise of his discretion. 39 This was an offence which involved considerable violence, the victims' home was invaded and they were both placed in fear. As the Judge said (ROS at 2): "…[it] must have been a shocking experience for both Mr Phillips and Ms Wren. It is a householder's nightmare." 40 For an offence of this kind, the deterrent elements of sentencing must not be overlooked. The Judge did not refer to general nor specific deterrence in his sentencing remarks. A failure by a sentencing judge to make express reference to general deterrence does not of itself constitute error but might indicate that a proper consideration has not been given to the need for the sentence to act as a deterrent to the public. 41 The respondent was 19 years old at the time of the commission of the offence. The Judge accepted that the entry into the house which was "a dangerous and ill-considered move … probably stemmed from or had a lot to do with the [respondent's] age." 42 His Honour referred to the respondent's considerable family support, his good employment history and having strong work and family ethics. He concluded that the respondent had good prospects of rehabilitation although that conclusion was "a little guarded because of the fact that Mr Terkmani committed another assault last year which led to a conviction in the Gosford Local Court of assault occasioning actual bodily harm." His Honour found that the respondent's age and prospects of rehabilitation provided him with reasons to depart from the standard non-parole period. All of these findings were open to the Judge on the evidence. 43 Whilst the relatively young age of an offender and his prospects of rehabilitation are important considerations in the sentencing exercise, it was incumbent upon the Judge not to give undue weight to these considerations in the balancing process and to have proper regard to the serious objective circumstances of the offence and to all of the seven purposes of punishment set out in s 3A of the Crimes (Sentencing Procedure) Act. I do not think, however, that his Honour failed to appropriately turn his mind to the consideration of general deterrence. 44 In written submissions, the Crown raised the issue of incorrect double counting by the Judge by contending that the same subjective features of the respondent's age and prospects of rehabilitation had been used to depart from the standard non-parole period and then to vary the statutory proportion of the non-parole period. I reject this submission. Whilst the Judge found special circumstances in the respondent's youth, first time in custody and prospects of rehabilitation, there was no inappropriate double counting. It was the respondent's age of 19 years at the time of the offending which was used as a justification to depart from the standard non-parole period and his age of 23 years at the time of sentence as a special circumstance. The work of youth and rehabilitation had not been fully done when they were taken into account in determining the application of the standard non-parole period: see R v Way (2004) 60 NSWLR 166 at [110]. In any event, the Judge was entitled to find as a special circumstance the respondent's first time in custody. 45 Although the Crown has made good one of its arguments, the sole ground of appeal is the manifest inadequacy of the sentence. A summary of the principles relevant to Crown appeals by Wood CJ at CL in R v Wall [2002] NSWCCA 42 at [70] is often quoted and I do not think it is necessary to repeat that summary here. 46 Attention was drawn by the respondent to Judicial Commission sentencing statistics. As the Judge noted in his sentencing remarks the statistics reveal that over 50 per cent of the sentences imposed for offences against s 112(2) of the Crimes Act were 4 years or less with over 50 per cent of non-parole periods being 2 years or less. Little assistance, however, may be derived from this statistical material as it includes sentences for offenders who pleaded guilty. Furthermore, as the serious indictable offence relied upon in an indictment will vary, a s 112(2) offence will cover a diversity of offending. The Crown also referred in written submissions to a number of cases none of which suggest to me that the sentence in the present case was plainly outside an appropriate range of sentence. 47 In my respectful opinion, the sentence imposed by the Judge was lenient and was probably influenced by his Honour's misunderstanding of the maximum penalty. I would not myself have imposed such a sentence at first instance. Whilst at the bottom of the range of an appropriate sentence, I am not, however, persuaded by the Crown that in the present case a sentence of 4 years imprisonment with a non-parole period of 2 years is definitely outside that appropriate range of sentence. 48 I am not satisfied that the Crown appeal should be upheld. Accordingly, I propose that the appeal be dismissed. ********** 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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