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Kandemir v R

Kandemir v R

Case [2018] NSWCCA 154 25 July 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Kandemir v R [2018] NSWCCA 154
Hearing dates: 20 June 2018
Date of orders: 25 July 2018
Decision date: 25 July 2018
Before: Beazley P at [1];
Price J at [2];
R A Hulme J at [104]
Decision:
(1) Leave to appeal sentence is granted.
(2) The appeal is dismissed.
Catchwords: CRIME – sentence appeal – knowingly take part in the supply of a prohibited drug of not less than a commercial quantity – accumulation – whether the sentencing judge erred by considering the sentence against an incorrect maximum penalty – whether the trial judge erred in the accumulation of the non-parole period of the sentences – whether the applicant should be re-sentenced – whether the utilitarian discount for the guilty pleas should be more than 15% – whether there should be any moderation of general deterrence for the applicant’s mental conditions – parity – special circumstances – whether non-parole period appropriately reflected the criminality of the offences
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 33
Cases Cited: Andreata v R [2015] NSWCCA 239
Aslan v R [2014] NSWCCA 114
Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284
Bell v R; Jelisavac v R [2009] NSWCCA 206
Benitez v R (2006) 160 A Crim R 166; [2006] NSWCCA 21
Cayhadi v R (2007) 168 A Crim R 41
Collier v R [2012] NSWCCA 213
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Jaafar v R [2017] NSWCCA 223
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Murray v R [2017] NSWCCA 262
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v AB [2011] NSWCCA 229
R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 152
R v Kerr [2003] NSWCCA 234
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Category: Principal judgment
Parties: Tamer Kandemir (Applicant)
Regina (Respondent)
Representation:
Counsel:
S Kluss (Applicant)
T Smith (Respondent)
Solicitors:
Ross Hill & Associate Solicitors
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/267150
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

20 December 2017

Before:

Judge Gartelmann SC

File Number(s):

2015/267150

Judgment

BEAZLEY P: I have had the advantage of reading in draft the reasons of Price J. I agree with his Honour’s reasons and proposed orders.
PRICE J: Tamer Kandemir (“the applicant”) seeks leave to appeal against the sentences imposed on him by Gartelmann SC DCJ (“the judge”) in the District Court at Parramatta on 20 December 2017. The applicant had been arraigned before the judge with Peter Murray, a co-offender, on a single indictment. The applicant…

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 Kandemir v R

Details

AGLC: Kandemir v R [2018] NSWCCA 154
Case: [2018] NSWCCA 154
Decision Date: 25 July 2018

CaseChat Overview and Summary

In the case of Kandemir v R, the applicant was convicted of multiple offences, including knowingly taking part in the supply of a prohibited drug of not less than a commercial quantity. The case came before the court on an appeal against the sentence imposed, challenging the accuracy of the non-parole period and the methodology used by the sentencing judge. The applicant argued that the sentencing judge had erred by considering the sentence against an incorrect maximum penalty and that the trial judge erred in the accumulation of the non-parole period of the sentences. The applicant sought to be re-sentenced and argued that the discount for the guilty pleas should exceed 15%, as well as questioning the consideration of general deterrence in light of the applicant's mental conditions.

The court examined whether the sentencing judge had indeed erred in applying the maximum penalty and if the accumulation of the non-parole period was correctly calculated. The court also considered whether the applicant should be re-sentenced, the appropriate discount for the guilty pleas, and the moderation of general deterrence for the applicant's mental conditions. Furthermore, the court assessed whether the non-parole period adequately reflected the criminality of the offences, taking into account the principles of parity and special circumstances.

The court concluded that the sentencing judge had indeed erred by considering the sentence against an incorrect maximum penalty. However, the court found that the accumulation of the non-parole period was correctly calculated. The court also determined that the applicant should not be re-sentenced and that the discount for the guilty pleas should remain at 15%. The court further found that the consideration of general deterrence should not be moderated for the applicant's mental conditions, and that the non-parole period appropriately reflected the criminality of the offences. The appeal was dismissed.

The court ordered that the applicant's sentence remain as imposed by the sentencing judge, with the non-parole period correctly calculated. The court emphasised the importance of accurately applying the maximum penalty in sentencing and the need for careful consideration of all factors in determining the appropriate sentence. The court also highlighted the significance of the discount for guilty pleas and the role of general deterrence in sentencing, particularly in cases involving drug offences.

Orders