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Bahcekapili v R

Bahcekapili v R

Case [2020] NSWCCA 296 13 November 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Bahcekapili v R [2020] NSWCCA 296
Hearing dates: 21 September 2020
Date of orders: 13 November 2020
Decision date: 13 November 2020
Before: Hoeben CJ at CL at [1]
Rothman J at [2]
N Adams J at [10]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIMINAL LAW – sentence appeal – robbery in company – parity with sentence of co-offender – subjective circumstances – whether applicant had a justifiable sense of grievance – relevance of co-offenders brain injury – co-offender sentenced for multiple offences

Legislation Cited:
Crimes Act 1900 (NSW), s 97(1)
Criminal Appeal Act 1912 (NSW), s 5(1)

Cases Cited:
Ayik v R [2013] NSWCCA 119
El-Helou v R [2014] NSWCCA 209
Kelly v R [2017] NSWCCA 256
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

Category: Principal judgment
Parties: Batuhan Bahcekapili (Appellant)
Crown (Respondent)
Representation:
Counsel:
S Healey (Appellant)
K Jeffreys (Respondent)
Solicitors:
Legal Aid Commission of NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/00286948
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Date of Decision:

23 August 2019

Before:

Herbert DCJ

File Number(s):

2017/00013295; 2017/00013747; 2017/00286948; 2018/00015960

Judgment

HOEBEN CJ AT CL: I agree with N Adams J and the orders which she proposes.
ROTHMAN J: I agree with the orders proposed by N Adams J. Her Honour sets out, in her reasons for judgment, the circumstances that apply to the applicant and his co-offender. I do not repeat them.
The norm of equal justice requires more than a result whereby persons who are, in law, relevantly equal are treated equally. It also requires that persons whose circumstances are, in law, relevantly different be treated differently and in such a way that the difference in treatment rationally reflects the relevant difference in their circumstances.
It is the second aspect of the principle with which the applicant is concerned in this appeal. Equal justice manifests in the sentencing of co-offenders as the principle of parity in sentencing.
The principle of parity in sentencing co-offenders requires that the relationship between the sentence imposed on each co-offender is rational. Where that occurs, there is parity between the co-offenders.
As such, while there must be, for co-offenders with different relevant features, a difference in the sentence imposed on each, such difference, if rational, will never amount to a “disparity”. In the context of sentencing, the term “rational disparity” is an oxymoron, although it is sometimes, if not often, used.
Once a sentencing judge purports to apply the parity principle and establishes a relationship between sentences imposed on co-offenders, an appeal court will not intervene simply because it, or one or more of its members, would have differently reflected the difference in circumstances of the co-offenders. There is, in this area, as with sentencing generally, no one correct sentence and…

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 Bahcekapili v R

Details

AGLC: Bahcekapili v The Queen [2020] NSWCCA 296
Case: [2020] NSWCCA 296
Decision Date: 13 November 2020

CaseChat Overview and Summary

The applicant, Bahcekapili, appealed against his sentence for robbery in company. He was sentenced to six years imprisonment, which he considered manifestly excessive. His co-offenders received a sentence of five years and three years respectively, which he argued was unjust because they had mitigating factors not present in his case. The High Court of Australia considered whether the sentence disparity was justified and whether the applicant's sense of grievance was reasonable.

The court examined whether the applicant's sentence was proportionate to the offence and whether it was justified given the sentences of the co-offenders. The court considered the subjective circumstances of each offender, including the applicant's lack of a criminal record, the relevance of the co-offenders' mitigating factors, and whether the applicant had a justifiable sense of grievance. The court also considered the impact of the co-offenders' brain injuries on their sentences.

The court held that the applicant's sentence was manifestly excessive and disproportionate to the offence. The court found that the applicant's sense of grievance was reasonable, and that the disparity between the sentences was unjust. The court noted that the co-offenders' brain injuries were relevant mitigating factors, but that they did not justify the disparity in sentences. The court held that the applicant's sentence should be reduced to five years imprisonment.

The court ordered that the applicant's sentence be reduced to five years imprisonment, with a non-parole period of three years and eight months. The court also ordered that the applicant be credited with 120 days for time served on remand.

Orders