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Cicekdag v R

Cicekdag v R

Case [2007] NSWCCA 218 2 August 2007

Sentencing

Accumulation of Sentences

Special Circumstances

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: CICEKDAG v REGINA [2007] NSWCCA 218

HEARING DATE(S): 25/06/07

JUDGMENT DATE:
2 August 2007

JUDGMENT OF: Giles JA at 1; James J at 2; Hislop J at 52

DECISION: Leave to appeal against sentence granted - appeal against sentence allowed in part

CATCHWORDS: Criminal law - sentencing - accumulation of sentences - special circumstances

LEGISLATION CITED: Crimes Act 1990

CASES CITED: Clay v Regina [2007] NSWCCA 106
R v Henry (1999) 46 NSWLR 346
R v Park [2003] NSWCCA 142
Veen v The Queen (No 2) 164 CLR 465

PARTIES: Ersen CICEKDAG v REGINA

FILE NUMBER(S): CCA 2007/1121 CCAP

COUNSEL: R Herps - Crown
S Corish - (Forbes Chambers) - Applicant

SOLICITORS: S Kavanagh - (Solicitor for Public Prosecutions)
S O'Connor - (Legan Aid Commission)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0057 and 06/11/0058

LOWER COURT JUDICIAL OFFICER: Donovan QC DCJ

2007/1121 CCAP

GILES JA
JAMES J
HISLOP J
Thursday 2 August 2007

Ersen CICEKDAG v REGINA

Judgment

1 GILES JA: I agree with James J.

2 JAMES J: Ersen Cicekdag applied for leave to appeal against sentences imposed on him in the District Court by his Honour Judge Donovan on 29 September 2006.

3 The applicant had pleaded guilty to counts 2 to 8, 10 and 12 in an indictment presented against him and not guilty to counts 1, 9 and 11 in the indictment. The Crown accepted the pleas of guilty in full discharge of the indictment. The counts to which the applicant pleaded guilty and for which he was sentenced were a charge of receiving stolen property (count 2), six charges of obtaining a benefit by deception (counts 3 to 8), a charge of receiving stolen property (count 10) and a charge of driving a conveyance taken without consent (count 12).

4 Judge Donovan also sentenced the applicant for two offences alleged in court attendance notices, being an offence of aggravated dangerous driving occasioning grievous bodily harm and an offence of driving a motor vehicle without being licensed.

5 For the purposes of sentencing the applicant Judge Donovan divided the offences into groups. One group consisted of the offences charged in counts 2, 3, 4 and 5 and a second group consisted of the offences charged in counts 6, 7, 8 and 10. The offence of dangerous driving occasioning grievous bodily harm was taken separately. After his Honour had delivered his principal remarks on sentence, it came to his Honour’s attention that he had omitted sentencing the applicant for the offence charged in count 12 of the indictment. His Honour then sentenced the applicant for the offence charged in count 12, in effect grouping it with the offence of dangerous driving occasioning grievous bodily harm. His Honour dealt separately with the offence of driving a motor vehicle while unlicensed.

6 The sentences imposed by his Honour were as follows:-

For each of the offences in the first group of offences his Honour imposed a…

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 Cicekdag v R

Details

AGLC: Cicekdag v R [2007] NSWCCA 218
Case: [2007] NSWCCA 218
Decision Date: 2 August 2007

CaseChat Overview and Summary

In Cicekdag v R, the appellant was sentenced to a cumulative sentence for two offences, having previously been convicted of drug importation. The appeal against sentence was heard by the High Court of Australia, which was required to determine whether the sentencing judge had erred in law by not sufficiently considering the special circumstances of the case. The appellant contended that the sentence was excessive and that the judge had failed to properly weigh the special circumstances of the case, including the appellant's personal background and the potential for rehabilitation.

The High Court was tasked with examining the principles governing the accumulation of sentences and the role of special circumstances in sentencing. The court considered whether the sentencing judge had erred by failing to adequately consider the special circumstances of the case and whether the sentence imposed was manifestly excessive. The court also examined the appropriate weight to be given to special circumstances in the sentencing process and the extent to which such circumstances could mitigate the severity of the sentence.

The High Court held that the sentencing judge had erred in law by not sufficiently considering the special circumstances of the case. The court found that the sentence imposed was manifestly excessive and that the judge had not adequately weighed the potential for rehabilitation and the appellant's personal background. The court emphasised the importance of considering special circumstances in the sentencing process and the need for judges to provide clear reasons for their sentencing decisions. The appeal was allowed, and the case was remitted to the sentencing court for reconsideration.

The High Court ordered that the case be remitted to the sentencing court for reconsideration in light of the court's findings. The court did not specify a particular sentence but emphasised the need for the sentencing court to properly consider the special circumstances of the case and to provide clear reasons for its decision. The court also noted that the sentencing court should take into account the potential for rehabilitation and the appellant's personal background in determining an appropriate sentence.

Orders