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Kocyigit v R

Kocyigit v R

Case [2018] NSWCCA 279 7 December 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Kocyigit v R [2018] NSWCCA 279
Hearing dates: 28 November 2018
Date of orders: 07 December 2018
Decision date: 07 December 2018
Before: Hoeben CJ at CL at [1]
Bellew J at [2]
Campbell J at [39]
Decision:
1. Leave to appeal refused.

Catchwords: CRIMINAL LAW – Offences – Sentence – Appeal – Robbery inflicting actual bodily harm – Where applicant and co-offender assaulted and robbed a member of the public – Serious injuries inflicted to the victim – Relevance of applicant’s mental state in determining sentence – Relevance of applicant’s youth – Objectively serious offending – Whether sentence manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW)
Cases Cited: Alkanaan v R [2017] NSWCCA 56
Azzi v R [2008] NSWCCA 169
Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
Director of Public Prosecutions (Cth) v De la Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Hili v R: Jones v R [2010] HCA 45
JM v R (2012) 223 A Crim R 55; [2012] NSWCCA 83
KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51
Mansour v R; Hughes v R [2013] NSWCCA 35
McDonald v R [2015] NSWCCA 280
R v Henry (1999) 46 NSWLR 346
R v Tuuta [2014] NSWCCA 40
R v Woods [1990] NSWCCA 9 October 1990
Vaeila v R [2010] NSWCCA 113
Vaiusu v R [2017] NSWCCA 71
Zhao v R [2016] NSWCCA 179
Category: Principal judgment
Parties: Mehmet Kocyigit – Applicant
Regina - Crown
Representation:
Counsel:
S Kluss – Applicant
E Balodis - Crown
Solicitors:
Ross Hill and Associates – Applicant
C Hyland, Solicitor for Public Prosecutions

File Number(s): 2017/169742
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

11 May 2018

Before:

Judge Herbert

Judgment

HOEBEN CJ at CL: I agree with Bellew J.
BELLEW J: On 14 February 2018 Mehmet Kocyigit (“the applicant”) pleaded guilty in the Local Court to a charge in the following terms:

On 7 February 2017 at Auburn in the State of NSW did rob Sayed Najafi of certain property, to wit, one Samsung Galaxy mobile phone IMEI 3590300616473 and one black leather wallet containing approximately $450 cash, one Opal card, one Medicare card and one immigration card, the property of the said Sayed Najafi, and at the time of the robbery inflicted actual bodily harm on the said Sayed Najafi.

The charge to which the applicant pleaded guilty was contrary to s 95(1) of the Crimes Act1900 (NSW) (“the Act”), the maximum penalty for which is 20 years imprisonment. The applicant adhered to his plea when he appeared before the District Court for sentence with a co-offender, John Sio (“Sio”).
On 11 May 2018, the applicant was sentenced by her Honour Judge Herbert to a non-parole period of 1 year and 7 months imprisonment commencing on 10 May 2018, with an additional…

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 Kocyigit v R

Details

AGLC: Kocyigit v The Queen [2018] NSWCCA 279
Case: [2018] NSWCCA 279
Decision Date: 07 December 2018

CaseChat Overview and Summary

Kocyigit was convicted of robbery while inflicting actual bodily harm on a member of the public. The applicant, along with a co-offender, assaulted and robbed a victim, causing significant injuries. Kocyigit appealed the sentence imposed by the Court of Appeal, arguing that it was manifestly excessive. The appeal focused on the relevance of Kocyigit's mental state and youth in determining the appropriate sentence for the offence.

The court considered the severity of the offence, the harm caused to the victim, and the applicant's personal circumstances. The gravity of the offence was highlighted by the violent nature of the crime and the significant injuries inflicted. The court also took into account the applicant's mental state, as well as his age, which was a mitigating factor. The court acknowledged that the applicant's youth and mental state were relevant in determining an appropriate sentence but found that the objective seriousness of the offending warranted a substantial penalty.

In assessing whether the sentence was manifestly excessive, the court found that while the applicant's age and mental state were mitigating factors, they did not outweigh the seriousness of the offence. The court concluded that the sentence was not manifestly excessive and dismissed the appeal. The court emphasised that the sentence reflected the gravity of the crime and the need to protect the community from such serious offences. The court's decision affirmed the importance of considering both aggravating and mitigating factors in sentencing decisions.

Orders