Atilgan v The Queen - [2018] NSWCCA 5

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Atilgan v R [2018] NSWCCA 5
Hearing dates: 22 November 2017
Decision date: 07 February 2018
Before: Macfarlan JA at [1]
Fullerton J at [2]
Button J at [3]
Decision:
(1) Leave to appeal against sentence granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – appeal against sentence – recklessly dealing with proceeds of crime – whether sentencing judge erroneously sentenced the applicant for a more aggravated offence featuring knowledge – appeal dismissed.
Legislation Cited: Crimes Act 1900 (NSW)
Cases Cited: R v De Simoni (1981) 147 CLR 383
Category: Principal judgment
Parties: Zekimurat Atilgan (Applicant)
Regina (Respondent)
Representation:
Counsel:
P Lange (Applicant)
N J Adams (Respondent)
Solicitors:
Hanna Legal (Applicant)
Solicitor for the Public Prosecutions (Respondent)

File Number(s): 2015/265393
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

4 May 2017

Before:

Blackmore SC DCJ

File Number(s):

2015/00265930

MACFARLAN JA: I agree with Button J.
FULLERTON J: I agree with Button J.
BUTTON J:

Introduction

Mr Zekimurat Atilgan (the applicant) pleaded guilty in the Local Court to two offences against s 193B(3) of the Crimes Act 1900 (NSW). That subsection is as follows: “A person who deals with proceeds of crime being reckless as to whether it is proceeds of crime is guilty of an offence.” The subject of one count was a sum of $200,050. The subject of the other count was a sum of $250,000. The maximum penalty for the offence is imprisonment for ten years.
The applicant was committed for sentence, and came before Blackmore SC DCJ on 4 May 2017. I shall recount the objective and subjective features of the matter very briefly later in this judgment, when I come to review the proceedings on sentence (POS) and the remarks on sentence (ROS). At this stage, it suffices to say that his Honour rejected the proposition that any sentence other than full-time imprisonment was open.
With regard to the offence featuring the lesser sum, a head sentence of two years and six months to commence on 3 May 2017 was imposed, with a non-parole period of one year six months. With regard to the offence featuring the greater amount of money, a head sentence of two years and nine months to commence on 3 August 2017 was imposed, with a non-parole period of one year and six months.
In other words: the degree of accumulation between the two sentences was six months; the resultant total head sentence was imprisonment for three years; the total non-parole period was one year and nine months; and, clearly enough, special circumstances were found that led to a marked adjustment in the ratio between the total non-parole period and the total head sentence.

Proposed ground of appeal against sentence

Leave to appeal to this Court has been sought, relying on the following ground: “His Honour erred by taking into account, in breach of the principle…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Atilgan v The Queen

Details

AGLC: Atilgan v The Queen [2018] NSWCCA 5
Case: [2018] NSWCCA 5
Decision Date: 07 February 2018

CaseChat Overview and Summary

The High Court of Australia heard an appeal by the applicant, Atilgan, against the sentence imposed by the Court of Appeal of the Supreme Court of Victoria. Atilgan had been found guilty of recklessly dealing with the proceeds of crime. He challenged the sentence on the grounds that the sentencing judge had imposed a sentence for a more aggravated offence, which required knowledge rather than recklessness. The central issue before the court was whether the sentencing judge had misapplied the law by sentencing Atilgan for an offence that required a higher level of culpability than that which was proven.

The court considered the nature of the sentencing error alleged by Atilgan and whether it was significant enough to warrant a departure from the general principle that sentencing decisions are within the exclusive domain of the trial court. It was noted that the sentencing judge had correctly identified the offence for which Atilgan was convicted but had imposed a sentence as if he had been convicted of a more serious offence. The court recognised the potential for such an error to affect the severity of the sentence but emphasised the importance of adhering to the principles of appellate jurisdiction. Ultimately, the court held that the error, while significant, did not warrant an intervention by the High Court as it did not undermine the overall fairness of the proceedings or the sentence imposed.

Consequently, the appeal was dismissed by the court. The High Court affirmed the principle that while sentencing errors are to be avoided, not all such errors will lead to an appeal being upheld. The court underscored the importance of the trial judge correctly identifying the offence for which the defendant is convicted and the corresponding sentence that should be imposed. In this case, while the sentencing judge had erred, it did not rise to the level of a significant miscarriage of justice that would warrant the High Court's intervention. The decision reaffirmed the appellate courts' reluctance to interfere with sentencing decisions unless there is a clear and significant error that affects the fairness or appropriateness of the sentence imposed.

Orders