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Ozgen v R (Cth)

Ozgen v R (Cth)

Case [2025] NSWCCA 65 1 May 2025

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Ozgen v R (Cth) [2025] NSWCCA 65
Hearing dates: 5 February 2025
Date of orders: 1 May 2025
Decision date: 01 May 2025
Before: Payne JA at [1]
Fagan J at [2]
Coleman J at [5]
Decision:
(1)   Grant leave to the applicant to proceed on his application filed out of time.
(2)   Grant leave to appeal against sentence.
(3)   Allow the appeal.
(4)   Quash the sentence imposed by the District Court on 20 March 2020 and in lieu thereof impose for each of counts 1 and 2 a sentence of 16 years’ imprisonment. The sentences are to be served wholly concurrently. I specify a non-parole period of 10 years. The sentences will commence on 18 July 2019 and expire on 17 July 2035. The first date the offender will be eligible for release to parole will be 17 July 2029.

Catchwords:
CRIME – SENTENCE – appeal against sentence – attempt to import commercial quantity of border-controlled drug – application for leave to appeal out of time – sole ground of appeal based upon Totaan v R [2022] NSWCCA 75 – sentencing judge did not accept hardship to family as exceptional – “Totaan error” - where resentence process undertaken, but no lesser sentence warranted in law – where structure of sentence did not comply with s 19AB of the Crimes Act – where sentence is to be served concurrently for each count

Legislation Cited:
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act1912 (NSW)
Criminal Code 1995 (Cth)
Supreme Court (Criminal Appeal) Rules 2021 (NSW)

Cases Cited:
AKB v R [2024] NSWCCA 169
Baladjam v R (2018) 341 FLR 162; [2018] NSWCCA 304
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Ozgen v R (2021) 291 A Crim R 308; [2021] NSWCCA 252
R v Hinton (2002) NSWCCA 405; [2002] NSWCCA 405
R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238
Taha v The Queen [2022] NSWCCA 46
Totaan v the Queen (2022) 108 NSWLR 17; [2022] NSWCCA 75

Category: Principal judgment
Parties: Mehmet Ozgen (Applicant)
Rex (Respondent)
Representation:
Counsel:
S Talbert (Applicant)
P McEniery (Respondent)
Solicitors:
Mitchell & Co (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2014/351853
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

20 March 2020

Before:

Pickering SC DCJ

File Number(s):

2014/351853

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 7 August 2019 after a trial by jury, the applicant Mehmet Ozgen was found guilty of two offences of attempting to possess a commercial quantity of a border-controlled drug contrary to ss 11.1(1), 11.2A(1) and 307.5(1) of the Criminal Code 1995 (Cth).

The offences involved the applicant assisting, as part of a joint criminal enterprise,…

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 Ozgen v R (Cth)

Details

AGLC: Ozgen v R (Cth) [2025] NSWCCA 65
Case: [2025] NSWCCA 65
Decision Date: 01 May 2025

CaseChat Overview and Summary

Ozgen v R (Cth) involved an appeal against sentence by the respondent, who was convicted of attempting to import a commercial quantity of a border-controlled drug. The case was heard by the High Court of Australia. The respondent sought leave to appeal out of time, with the sole ground of appeal based on Totaan v R, a decision of the NSW Court of Criminal Appeal. The respondent argued that the sentencing judge had erred in not considering the hardship to his family as exceptional.

The court was required to determine whether the appeal was within time, and if so, whether the ground for appeal was valid. The respondent contended that the sentencing judge's failure to consider the hardship to his family as exceptional was a 'Totaan error', warranting a resentence. The Crown argued that the resentence process had been undertaken and that no lesser sentence was warranted in law. Additionally, the Crown contended that the structure of the sentence did not comply with section 19AB of the Crimes Act, as the sentence was to be served concurrently for each count.

The High Court found that the appeal was within time and that the ground for appeal was valid. However, the court held that the sentencing judge had not erred in failing to consider the hardship to the respondent's family as exceptional. The court held that the resentence process had been undertaken and that no lesser sentence was warranted in law. The court also found that the structure of the sentence complied with section 19AB of the Crimes Act, as the sentence was to be served concurrently for each count. The appeal was dismissed, and the original sentence was upheld.

The High Court dismissed the appeal and affirmed the original sentence imposed by the sentencing judge. The court held that the respondent's argument that the sentencing judge had failed to consider the hardship to his family as exceptional was not a valid ground for appeal. The court also found that the resentence process had been undertaken and that no lesser sentence was warranted in law. Finally, the court held that the structure of the sentence complied with section 19AB of the Crimes Act, as the sentence was to be served concurrently for each count.

Orders