Beech-Jones CJ at CL at [1] Fagan J at [2] R A Hulme AJ at [3]
Decision:
(1) Leave to appeal against sentence granted.
(2) Appeal dismissed.
Catchwords:
CRIME – appeal against sentence – aggregate sentence – manifest excess by misapplication of totality principle – no error – parity with sentence of asserted co-offender – applicant a supplier of drugs purchased from a syndicate in which co-offender was a participant – not co-offenders in same criminal enterprise for purpose of parity principle
Counsel: S Flood (Applicant) J Styles (Respondent)
Solicitors: Kingston Fox Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):
158345/2020
Decision under appeal
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Date of Decision:
30 November 2021
Before:
Culver AM DCJ
File Number(s):
158345/2020
HEADNOTE
[This headnote is not part of the judgment]
Allan Kiraz acquired drugs on 10 occasions from a “dial-a-dealer” supply syndicate. On one of those occasions the drugs were delivered to him by Eren Mehmed. Mr Kiraz pleaded guilty to a charge of supplying a large commercial quantity of methylamphetamine and asked that further offences on a Form 1 be taken into account, including charges of supplying indictable quantities of methylamphetamine and gamma butyrolactone and dealing with $4100 which was the suspected proceeds of crime. He also pleaded guilty to a charge of possessing a prohibited weapon (an anti-personnel conducted energy device (a “taser”)).
In assessing the objective seriousness of the primary offences the sentencing judge took into account there was a degree of overlap in that the seriousness of the taser offence was elevated by it being found in “proximity to prohibited drugs and cash, the suspected proceeds of crime”. After a 25% allowance was made for the pleas of guilty, the judge assessed indicative sentences for the…
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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Details
AGLC
Kiraz v R [2023] NSWCCA 177
Case
[2023] NSWCCA 177
Decision Date
CaseChat Overview and Summary
The appeal was brought by the appellant, who was sentenced to a total of 13 years in prison, against the aggregate sentence imposed. The respondent was the Crown. The appellant was convicted of drug trafficking and other related offences. The issue before the court was whether the sentence imposed was manifestly excessive by misapplying the principle of totality, and whether it was appropriate to apply the parity principle to achieve parity with the sentence of an alleged co-offender.
The court found that there was no error in the application of the principle of totality, and that the sentence was not manifestly excessive. The court also found that the parity principle did not apply because the appellant was not a co-offender in the same criminal enterprise as the alleged co-offender. The appellant was a supplier of drugs that were purchased from a syndicate in which the alleged co-offender was a participant. The court held that the sentence imposed was appropriate and not manifestly excessive, and that the parity principle did not apply in this case.
The appeal was dismissed, and the sentence imposed by the trial court was affirmed. The court held that the sentence was not manifestly excessive and that the parity principle did not apply in this case. The court further held that the sentence was appropriate and in line with the principles of sentencing in Australia. The court dismissed the appeal and affirmed the sentence imposed by the trial court.