Toksoz v R

1. [1]

   HOEBEN CJ AT CL: I agree with Bellew J and the orders which he proposes.

2. [2]

   BELLEW J: On 15 November 2017 Ahmet Toksoz (“the applicant”) appeared before his Honour Judge Wilson SC in the District Court of NSW and pleaded guilty to an indictment containing the following counts:

   1. (1)

      On 11 December 2014, in Prestons in the State of New South Wales, Hasan Goktas (“Goktas”) did wound Timothy Venesjarvi, within intent to cause grievous bodily harm to him, and Ahmet Toksoz, knowing the said Hasan Goktas to have committed the said serious indictable offence in the manner aforesaid, afterwards, to wit, between 11 and 19 December 2014 in the State, did receive, harbour, maintain and assist the said Hasan Goktas (contrary to the Crimes Act 1900 (NSW) ss 33(1)(a) and 350) (count 1);

   2. (2)

      On 11 December 2014, in Prestons in the State of New South Wales, Hasan Goktas did wound Kelsey Coakes and was reckless as to causing actual bodily harm to him, and Ahmet Toksoz, knowing the said Hasan Goktas to have committed the said serious indictable offence in the manner aforesaid, afterwards, to wit, between 11 and 19 December 2014 in the said State, did receive, harbour, maintain and assist the said Hasan Goktas (contrary to the Crimes Act 1900 (NSW) ss 35(4) and 350) (count 2);

   3. (3)

      On 11 December 2014, at Prestons in the State of New South Wales, Hasan Goktas did fire a firearm, namely, a revolver, in a public place, namely, the carpark of the Liverpool Catholic Club, and Ahmet Toksoz, knowing the said Hasan Goktas to have committed the said serious indictable offence in the manner aforesaid, afterwards, to wit, between 11 and 19 December 2014 in the said State, did receive, harbour, maintain and assist the said Hasan Goktas (contrary to the Crimes Act 1900 (NSW) ss 93G(1)(b) and 350) (count 3).

3. [3]

   A Certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) was filed in respect of an additional offence of failing to disclose the identity of the driver or passenger of a vehicle, contrary to s 17(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”).

4. [4]

   The maximum penalty for the offending in each of counts 1, 2 and 3 is imprisonment for five years. No standard non-parole period is prescribed.

5. [5]

   On 22 February 2018, the sentencing judge gave the following indicative sentences:

6. [6]

   His Honour subsequently imposed an aggregate sentence of 2 years and 6 months imprisonment with a non-parole period of 18 months.

7. [7]

   The applicant now seeks to leave to appeal against that sentence upon the grounds more fully set out below.

THE FACTS

1. [8]

   An agreed statement of facts was tendered in the sentence proceedings, on the basis of which the sentencing judge found the circumstances of the offending to be as follows (commencing at ROS 3):

THE SENTENCE PROCEEDINGS

1. [9]

   In addressing the sentencing judge in respect of the objective seriousness of the offending, counsel then appearing for the applicant made the following submission (at T7.5):

2. [10]

   Later in the proceedings, and again in the context of dealing with the objective seriousness of the applicant’s offending, counsel said (commencing at T11.37):

3. [11]

   Included in the material tendered in the applicant’s case on sentence was a letter from the applicant which included the following:

The findings of the sentencing judge

1. [12]

   Under the heading “Objective seriousness of the offences” the sentencing judge said the following (commencing at ROS 10):

Submissions of the applicant

1. [13]

   Counsel for the applicant submitted that the agreed facts did not identify, as part of the applicant’s offending, any failure on his part to report Goktas to the police. It was submitted that the applicant had not been charged with concealing a serious offence contrary to s 316 of the Crimes Act 1900 (NSW) (“the Act”) and that in these circumstances, the sentencing judge had erred by taking such conduct into account.

2. [14]

   It was further submitted that the submissions put to the sentencing judge (as set out in [9] and [10] above) were qualified by counsel’s repeated use of the term “in effect”, and that such submissions were not to be construed as an acknowledgment that the applicant’s failure to report Goktas was to be regarded as part of his (i.e. the applicant’s) offending.

Submissions of the Crown

1. [15]

   The principal submission of the Crown was that in advancing this ground, the applicant was seeking to conduct his case in a manner different to that in which it had been conducted before the sentencing judge. In this regard, the Crown drew attention to those aspects of the sentence proceedings set out at [9]-[11] above, and submitted that it was clear that the parties had proceeded on the basis that the applicant’s failure to report Goktas’ offending to police formed part of the factual basis upon which he was to be sentenced. It was further submitted that the time frame pleaded in the indictment made it clear that the facts encompassed such failure.

2. [16]

   The Crown submitted that in all of the these circumstances it was clear to all parties that the applicant was being sentenced on the basis that the offending encapsulated the acts of:

Consideration

1. [17]

   It is obviously important that agreed facts set out the basis on which a person is to be sentenced: R v Palu [2002] NSWCCA 381 at [21]). However in this case, there can be no doubt that when the matter was before the sentencing judge, the applicant, his counsel, and the Crown all understood that the applicant’s failure to report Goktas to police formed part of the facts of the offending. To parse what was said by counsel appearing on sentence, and to seek to qualify it, overlooks that understanding, as well as the express terms of the submissions which were put on the applicant’s behalf.

2. [18]

   In these circumstances, this ground is not made out.

Ground 3 – The sentence is manifestly excessive.

1. [19]

   These grounds raise common issues and may be conveniently dealt with together. The indicative sentences imposed by his Honour are set out at [5] above.

The reasons of the sentencing judge

1. [20]

   Under the heading “Approach to determining sentence” the sentencing judge said the following (commencing at ROS 27):

Submissions of the applicant

1. [21]

   In relation to ground 2, counsel for the applicant expressly accepted that subject to principles of totality, some degree of accumulation of the indicative sentences was warranted. The gravamen of the complaint in respect of ground 2 was that the basis for the degree of accumulation applied by the sentencing judge could not be discerned from his Honour’s reasons. It was submitted, in particular, that his Honour had failed to articulate the basis upon which he had concluded that the totality of the offending warranted the imposition of an aggregate term of 2 years and 6 months, which represented an accumulation of 10 months imprisonment upon the indicative sentence for count 1.

2. [22]

   As to ground 3, counsel for the applicant submitted that having regard to the indicative sentence in respect of count 1, the applicant’s subjective case, and principles of sentencing, there was little requirement for any significant accumulation, and that the accumulation adopted by the sentencing judge had given rise to a manifestly excessive aggregate term.

Submissions of the Crown

1. [23]

   In relation to ground 2, the Crown submitted that the sentencing judge was not under any obligation to explain how considerations of accumulation and concurrence had resulted in the aggregate sentence which was imposed. The Crown further submitted that the sentencing judge had correctly stated the relevant principles, and was clearly mindful of the necessity to apply those principles to his determination of an appropriate sentence. It was submitted that in these circumstances, no reasons over and above those which were given, were required. Further, the Crown submitted that questions of accumulation and concurrence are necessarily intuitive and involve the exercise of a discretion with which this Court would be slow to interfere.

2. [24]

   As to ground 3, the Crown submitted that when all relevant factors were taken into account, the sentence imposed properly reflected the gravity of the offending. The Crown specifically pointed to the fact that:

3. [25]

   The Crown also emphasised that the applicant was being sentenced for three separate offences. Whilst accepting that such offences were committed in quick succession, and that this was relevant to the question of totality, the Crown submitted that it was necessary that the multiplicity of offences be reflected in any sentence imposed. The Crown also pointed to the fact that there were two separate victims of the principal offences, one of whom had received two gunshot injuries.

4. [26]

   Finally, the Crown submitted that there is a significant public interest in deterring people from assisting the perpetrators of serious offending and that accordingly, general deterrence was an important consideration in determining an appropriate sentence in the present case.

Consideration

1. [27]

   In relation to ground 2, his Honour expressly referred to the principle of totality. He also made specific reference to the principles, and the authorities, governing accumulation and concurrence. He was therefore clearly mindful of all of these considerations, and their role in determining an appropriate sentence.

2. [28]

   Moreover, it has been observed that in a case where an aggregate sentence is imposed, this Court is not in a position to analyse issues of concurrence and accumulation in the same way that it is able to analyse traditional sentencing structures. This is because an explanation does not have to be given by a sentencing judge as to how questions of accumulation and concurrence were resolved: Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77 at [164] citing JM v R [2014] NSWCCA 297 at [40].

3. [29]

   In all of these circumstances, the asserted error in ground 2 is not made out.

4. [30]

   As to ground 3, a complaint of manifest excess requires an applicant to establish that the sentence imposed is unreasonable or plainly unjust: Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54. The offending committed by Goktas was obviously serious. It involved the use of firearms, and there were two separate victims. The assistance rendered by the applicant was significant, and extended over a period of some days. Further, as the Crown pointed out, that assistance was rendered by the applicant with full knowledge of the circumstances surrounding Goktas’ offending. General deterrence was an obviously important consideration in determining an appropriate sentence. Moreover, his Honour had full regard to the applicant’s subjective case, as is evident from his exhaustive review at ROS 11-22.

5. [31]

   In all of these circumstances I am not persuaded that the sentence was manifestly excessive. Accordingly, ground 3 is not made out.

The reasons of the sentencing judge

1. [32]

   The reasons of the sentencing judge relating to this ground are set out at [12] above.

Submissions of the applicant

1. [33]

   It was submitted on behalf of the applicant that the sentencing judge fell into error by taking into account facts which gave rise to more serious offending than that which was alleged, thus contravening the principle in R v De Simoni [1981] 147 CLR 383; [1981] HCA 31. Shortly put, it was submitted that the sentencing judge had erred in taking into account the applicant’s failure to report the offending to the police, and his response to police when a demand was made pursuant to LEPRA. The error was said to arise from the fact that when done with the intention of hindering or obstructing an investigation, silence, and a failure to divulge information, were matters that were capable of giving rise to an offence contrary to s 315 of the Act, the maximum penalty for which is 7 years imprisonment.

Submissions of the Crown

1. [34]

   The Crown’s principal submission was that the applicant’s failure to report Goktas’ offending to police, and his response to the demand made by the police under LEPRA, amounted to a failure, and a refusal, to divulge information. It was submitted that in these circumstances, and in light of the provisions of s 315(3), there had been no breach of the De Simoni principle. It was submitted that the provisions of s 315(3) acted as a barrier to a prosecution of the applicant for an offence under that section.

Consideration

1. [35]

   In De Simoni, Gibbs CJ (with whom Mason J and Murphy J agreed) said (at 389):

2. [36]

   It will be evident from the issues canvassed in respect of ground 2 that the sentencing judge in the present case proceeded on the basis of facts which satisfied the elements of the offences which were charged. Even if those facts did constitute an offence contrary to s 315, it would not automatically follow that the principle in De Simoni was breached. In Turkmani v R [2014] NSWCCA 186, Beech-Jones J (with whom Hoeben CJ at CL and Hamill J agreed) said the following in reference to De Simoni (at [37]):

3. [37]

   Further, it will be evident from the passage of his Honour’s remarks set out at [12] that having made reference to the submissions made on behalf of the applicant, his Honour observed:

4. [38]

   Section 315 of the Act is in the following terms:

5. [39]

   The two failures to which his Honour referred fall squarely within the provisions of s 315(3). The applicant was therefore not liable to be prosecuted for an offence contrary to that section, and there was no breach of the principle in De Simoni.

6. [40]

   In these circumstances, this ground is not made out.

ORDERS

1. [41]

   The sentencing judge imposed an aggregate sentence of 2 years and 6 months imprisonment commencing on 12 April 2017 and expiring on 11 October 2019. He imposed a non-parole of 18 months commencing on 12 April 2017 and expiring on 11 October 2018. The applicant was later released, and remains, on bail. It was agreed between the parties that at the time of his release the applicant had served a total of 11 months of the sentence imposed by the sentencing judge. In view of the conclusions which I have reached the applicant must be returned to custody to complete his sentence and in these circumstances I propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.

   3. (3)

      The sentence imposed by the sentencing judge is confirmed.

   4. (4)

      The applicant is to be returned to custody forthwith.

   5. (5)

      The applicant is to be released at the expiration of his non-parole period on 12 September 2019.

   6. (6)

      The applicant’s sentence will expire on 12 September 2020.

2. [42]

   CAMPBELL J: I agree with Bellew J.