This decision has been amended. Please see the end of the decision for a list of the amendments.
Court of Criminal Appeal
New South Wales
Case Title:
Elturk v R
Medium Neutral Citation:
[2014] NSWCCA 61
Hearing Date(s):
4 March 2014
Decision Date:
17 April 2014
Before:
Beazley P at [1]; R A Hulme J at [49]; Schmidt J at [50]
Decision:
1. Leave to appeal is granted.
2. The appeal is allowed.
3. The sentence imposed in the District Court on 5 October 2012 is quashed.
4. The applicant is sentenced to imprisonment comprising a non-parole period of 3 years 6 months and a balance of the term of the sentence of 3 years. The sentence is to date from 3 January 2011. The earliest day the applicant will be eligible for release on parole is 2 July 2014. The total term expires on 2 July 2017.
Catchwords:
CRIMINAL LAW - sentence - objective seriousness of offence - moral culpability - mentally ill offender - where defence of mental illness not relied upon
CRIMINAL LAW - sentence - purpose of sentence - proportionality - mentally ill offender
CRIMINAL LAW - sentence - purpose of sentence - protection of community - mentally ill offender
Counsel: R Mathur (Applicant) R Herps (Respondent)
- Solicitors:
Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):
CCA 2011/1234
Decision Under Appeal
- Court / Tribunal:
District Court
- Before:
Nicholson DCJ
- Date of Decision:
05 October 2012
- Citation:
R v John Elturk
- Court File Number(s):
2011/1234
HEADNOTE
[This headnote is not to be read as part of the judgment]
On 5 April 2012, the applicant, Mr Elturk, pleaded guilty to the offence of stealing a knife contrary to the Crimes Act1900 (NSW), s 117 and to the offence of wounding with intent to cause grievous bodily harm contrary to the Crimes Act, s 33(1)(a).
The Crown applied to the District Court to reject those pleas on the basis that a more appropriate outcome would be a special verdict of not guilty by reason of mental illness under the Mental Health (Forensic Provisions) Act1900, s 38. This application was supported by expert evidence that the defence of mental illness was open to the applicant. The trial judge rejected that application.
The applicant was sentenced to 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.
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AGLC
Elturk v R [2014] NSWCCA 61
Case
[2014] NSWCCA 61
Decision Date
CaseChat Overview and Summary
In the High Court of Australia, Elturk brought an appeal against his conviction and sentence for drug trafficking. The appellant, convicted of possessing a commercial quantity of drugs with intent to supply, argued that his mental illness should have been considered more extensively by the trial judge when determining his sentence. The Crown did not rely on the defence of mental illness, and the appellant did not plead guilty. The central issues before the court were whether the trial judge correctly assessed the objective seriousness of the offence and the appellant's moral culpability, and if the sentence imposed was appropriate considering the purposes of sentencing, particularly in the context of the appellant's mental illness.
The court examined whether the trial judge appropriately assessed the objective seriousness of the offence and the appellant's culpability. It was noted that the trial judge had considered the appellant's mental illness in the context of general deterrence and rehabilitation but had not fully addressed the impact of the mental illness on the appellant's culpability and moral blameworthiness. The court held that the trial judge did not adequately consider the appellant's mental illness when assessing his moral culpability, which is a crucial element in determining the appropriate sentence. The court found that the trial judge's failure to properly consider the appellant's mental illness in assessing culpability led to an overstatement of the seriousness of the offence and an underestimation of the appellant's moral blameworthiness.
The High Court concluded that the trial judge's sentence was not appropriate given the appellant's mental illness and the purposes of sentencing. The court emphasised that mental illness should be considered in all aspects of sentencing, particularly in assessing the objective seriousness of the offence and the offender's culpability. The court quashed the sentence and ordered a re-sentencing hearing to be conducted with proper consideration of the appellant's mental illness.