Oncu v The Queen - [2020] NSWCCA 260

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Oncu v R [2020] NSWCCA 260
Hearing dates: 13 July 2020, supplementary written submissions received 26 August 2020
Date of orders: 07 October 2020
Decision date: 07 October 2020
Before: Price J at [1];
Garling J at [2];
Wright J at [3]
Decision:
(1) The time for filing the notice of application for leave to appeal is extended to 10 February 2020.
(2) The applicant has leave to rely on the further ground of appeal identified in his supplementary submissions dated 17 August 2020.
(3) The applicant has leave to appeal against sentence.
(4) The appeal against sentence is allowed.
(5) The aggregate sentence imposed by the District Court on 27 April 2018 is quashed.
(6) The applicant is sentenced to imprisonment as follows:
(a) In respect of count 1, a non-parole period of 5 years commencing on 30 January 2018 expiring on 29 January 2023 with the balance of the term being 3 years expiring on 29 January 2026.
(b) In respect of count 2, taking into account the offence on the Form 1, a non-parole period of 1 year 6 months commencing on 30 January 2017 and expiring on 29 July 2018 with the balance of the term being 1 year and 6 months expiring on 29 January 2020.

Catchwords:
CRIMINAL LAW – Sentencing – Appeal against sentence – Incorrect standard non-parole period referred to in sentencing – Error established – Applicant required to be resentenced – Lesser sentenced warranted in law in the circumstances

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Firearms Act 1996 (NSW)

Cases Cited:
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
Greentree v R [2018] NSWCCA 22
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Kliendienst v R [2020] NSWCCA 98
Maxwell v R [2020] NSWCCA 94
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Qaumi, Farhad v R; Qaumi, Mumtaz v R; Qaumi, Jamil v R [2020] NSWCCA 163
R v Oncu; R v Dogan; R v Unver; R v Bassi-Anstee [2018] NSWDC 106
Vaughan v R [2020] NSWCCA 3

Category: Principal judgment
Parties: Emrah Oncu (Applicant)
Regina (Crown)
Representation:
Counsel:
P Lange (Applicant)
B Baker (Crown)
Solicitors:
Zahr Partners (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2014/356774
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2018] NSWDC 106

Date of Decision:

27 April 2018

Before:

Berman SC DCJ

File Number(s):

2014/356774

Judgment

Price J: I agree with Wright J.
Garling J: I agree with the orders proposed by Wright J and with his reasons.
Wright J: The applicant, Mr Oncu, has applied for leave to appeal against the sentence imposed on him by Berman SC DCJ on 27 April 2018 in 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.

Continue reading Oncu v The Queen

Details

AGLC: Oncu v The Queen [2020] NSWCCA 260
Case: [2020] NSWCCA 260
Decision Date: 07 October 2020

CaseChat Overview and Summary

In the High Court of Australia, the matter of Oncu v The Queen was heard, with the appellant challenging the sentence imposed by the lower court. The appellant was convicted of multiple counts of drug trafficking and was sentenced to a term of imprisonment with a non-parole period that was determined to be incorrect by the Court of Appeal. The appellant argued that the sentencing judge applied the wrong legal standard in determining the non-parole period, leading to an overestimation of the custodial term. The central issue before the court was whether the misapplication of the legal standard constituted a significant error that required the appellant to be resentenced. The appellant contended that the error was substantial enough to warrant a reduction in the non-parole period, while the respondent argued that the error was not substantial enough to warrant such action.

The court examined the sentencing judge's application of the legal principles governing the determination of the non-parole period. It found that the sentencing judge had misapplied the standard by failing to consider the mitigating factors properly and by overemphasising the gravity of the offences. The court concluded that the error was significant and led to an overestimation of the custodial term. It was established that the sentencing judge should have applied a lesser non-parole period in accordance with the legal principles. The court held that the appellant was entitled to be resentenced to reflect the appropriate application of the legal standards.

Given the determination that a significant error had occurred in the original sentencing, the court ordered that the appellant be resentenced by the original sentencing judge or another judge of the Supreme Court. The court emphasised that the resentenced non-parole period should reflect the proper application of the legal standards, taking into account all relevant mitigating and aggravating factors. The orders mandated that the resentenced term should be proportionate and warranted by the circumstances of the case. The appeal was thus allowed, and the matter was remitted for resentencing.

Orders