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Court of Criminal Appeal 9 May 2012

R v Hakan YUKSEL; R v Yavuz Selim SIRTLAN

[2012] NSWCCA 84

Assault & violenceTheft & property
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE ROBBERY IN COMPANY WHETHER SENTENCES MANIFESTLY INADEQUATE APPLICATION OF PARITY PRINCIPLES

Citation: R v Hakan YUKSEL; R v Yavuz Selim SIRTLAN [2012] NSWCCA 84
Court: NSW Court of Criminal Appeal
Date: 9 May 2012
Judge(s): Whealy JA, Blanch J, Beech-Jones J (judgment delivered by Beech-Jones J)

Background

Two co-offenders, both aged 19 at the time, pleaded guilty to robbery in company under s 97(1) of the Crimes Act 1900 following an early-morning street robbery at Strathfield on 22 January 2011. The two victims, also aged 21, were confronted by the offenders near Strathfield Railway Station. One offender produced a bladed object and demanded property; both victims surrendered their wallets and iPhones. A second offence involving the other victim was taken into account on a Form 1 for each offender.

The sentencing judge in the District Court imposed a non-parole period of 18 months with an 18-month balance of term on one offender (Sirtlan), and a fully suspended sentence of one year and 51 weeks on the other (Yuksel). Both received a 25% discount for early guilty pleas.

The Crown appealed both sentences on multiple grounds, contending they were manifestly inadequate, that the sentencing judge had failed to properly apply the guideline judgment in R v Henry, had underestimated the objective seriousness of the offences, and had erred in finding one offender genuinely remorseful.

  • Whether the sentencing judge failed to take into account, or misapplied, the sentencing guideline in R v Henry [1999] NSWCCA 111
  • Whether the sentencing judge underestimated the objective seriousness of the offences
  • Whether the sentences were manifestly inadequate
  • Whether the sentencing judge erred in finding that Yuksel was genuinely remorseful
  • Whether the suspended sentence imposed on Yuksel was the product of error (including whether the judge had worked backwards from a sentence length designed to enable suspension)
  • How parity principles applied as between the two offenders

Decision

Application of the Henry guideline: Beech-Jones J confirmed that guideline judgments are not rules of universal application, and that failure to sentence in accordance with a guideline is not itself a ground of appeal. The sentencing judge had expressly identified the Henry guideline and noted its relevant features. In Sirtlan's case, the sentence fell within the range identified in Henry as adjusted for a 25% discount. The Crown failed to establish that the guideline had been ignored or misapplied, particularly given the positive rehabilitation finding and the mitigating circumstance of Sirtlan's own prior victimisation.

Objective seriousness and manifest inadequacy (Sirtlan): The Court accepted that the offence was serious and that the use of a blade was a significant feature. However, it found that the sentencing judge had not erred in his overall assessment of objective seriousness. The Crown's submission that a non-parole period of 18 months was insufficient was rejected. The finding of special circumstances, justified by Sirtlan's genuine rehabilitation prospects and psychiatric needs, adequately explained the ratio between non-parole and balance of term.

Remorse and suspended sentence (Yuksel): The Crown challenged the sentencing judge's finding that Yuksel was genuinely remorseful, pointing to inconsistencies in his explanation of events. The Court acknowledged the finding was "not without difficulty" but ultimately concluded the Crown had not demonstrated error, given that remorse assessments are primarily matters for the sentencing judge who observed the evidence firsthand. The Court also rejected the argument that the judge had engineered the sentence length to enable suspension, noting that the judge had already expressly declined a submission for minimal imprisonment to qualify for an intensive correction order.

Suspended sentence as adequate punishment: The Court affirmed that a suspended sentence can, in some circumstances, constitute a sufficiently severe form of punishment to serve both general and specific deterrence, citing R v Zamagias.

Orders Made

  • The Crown appeal against the sentence imposed on Yavuz Selim Sirtlan was dismissed.
  • The Crown appeal against the sentence imposed on Hakan Yuksel was dismissed.

Note: The Court also identified minor procedural errors in both sentences (an incorrect start date for Sirtlan's sentence, and an improperly fixed commencement date for Yuksel's suspended sentence). As the appeals were dismissed, the parties were directed to seek correction through an application to the District Court under s 43 of the Crimes (Sentencing Procedure) Act 1999.

Key Takeaways

  • Under the framework established in R v Henry and confirmed here, sentencing guideline judgments set a range to be considered, not a mandatory outcome. A sentence within an adjusted range will ordinarily withstand a Crown challenge on this ground alone.
  • The Court of Criminal Appeal confirmed that remorse is a factual finding for the sentencing judge, and an appellate court will not readily interfere with such a finding where the judge had the benefit of observing the witness, even where the finding is described as difficult.
  • A Crown appeal alleging that a judge constructed a sentence length to enable suspension will not succeed where the record shows the judge independently rejected a submission for minimal imprisonment before turning to the question of suspension.
  • In dismissing both appeals, the Court reinforced that parity considerations between co-offenders are not rendered irrelevant by differences in objective involvement, provided those differences are properly identified and weighed at first instance.
  • Where minor sentencing errors are identified but the sentences are otherwise upheld on appeal, the appropriate mechanism for correction is an application to the originating court under s 43 of the Crimes (Sentencing Procedure) Act 1999, not appellate intervention.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 36-42A, 43, 99(1)

Cases:
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 (sentencing guideline for robbery in company)
- R v Kelly [2010] NSWCCA 259 (adjustment of Henry range for 25% discount)
- R v Zamagias [2002] NSWCCA 17 (suspended sentences and deterrence)
- R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 25 (guideline judgments and legislative mandate)
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- Green v The Queen; Quinn v The Queen [2011] HCA 49
- Postligione v R [1997] HCA 26; (1997) 189 CLR 295
- Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
- R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
- R v Black [2001] NSWCCA 41
- R v Perese [2001] NSWCCA 478; (2001) 126 A Crim R 508
- R v Thomas [2007] NSWCCA 269
- R v Koloamatangi [2011] NSWCCA 288
- Frahm v R [2009] NSWCCA 249
- Attorney General's Application under s 37 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- R v Wong [2001] HCA 64; (2001) 207 CLR 584