New South Wales
Court of Criminal Appeal
CITATION: PAPADOPOULOS v R TOPCU v R [2007] NSWCCA 274
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 9 March 2007
JUDGMENT DATE:
12 September 2007JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 4; Hoeben J at 198 DECISION: See paragraph 199 PARTIES: Regina
Christovalantis PAPADOPOULOS
Bulent TOPCUFILE NUMBER(S): CCA 2006/5461; 2006/4824 COUNSEL: Crown: Mr D Arnott SC
Applicant Papadopoulos: Mr H Dhanji
Applicant Topcu: Mr B Walker SC with Ms G BashirSOLICITORS: Crown: S Kavanagh
Applicants: SE O'ConnorLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/11/0577 LOWER COURT JUDICIAL OFFICER: Puckeridge DCJ
2006/5461
2006/4824
Wednesday, 12 September 2007McCLELLAN CJ AT CL
HULME J
HOEBEN J
PAPADOPOULOS, Christovalantis v R
TOPCU, Bulent v R
1 McCLELLAN CJ at CL: I have had the benefit of reading in draft the judgment of Hulme J in these appeals. But for one matter I agree with the orders which his Honour proposes and with his Honour’s reasons.
2 In relation to the sentence which his Honour proposes for the offence involving vaginal intercourse committed by Papadopoulos I would have imposed a non-parole period of three years commencing on 17 December 2006 with a balance of term of 18 months. In my opinion, notwithstanding the fact that both Topcu and Papadopoulos became caught up in events for which they were not initially responsible, the circumstances of this offence require a sentence which adequately marks its seriousness. Although Papadopoulos, no doubt, reacted to the violent and destructive actions of Eken the act of intercourse took place in the bedroom in circumstances where I am satisfied he had a real choice as to whether or not to penetrate the complainant. Hulme J discusses the available Judicial Commission statistics in relation to the relevant offence in [191] of his judgment. The statistics do not reveal the factual circumstances of each case and whether or not vaginal intercourse occurred. However, the sentence which I propose would not be out of line with the range of sentences revealed by the Commission’s statistics.
3 The primary judge sentenced Papadopoulos to a term of 7 years and 4 months with a non-parole period of 5½ years for this offence. His Honour had the benefit of hearing the evidence and observing the relevant witnesses. This gave his Honour the advantage of being able to appreciate the atmosphere in which the offence occurred which no doubt influenced his Honour’s sentence.
4 HULME J: On 16 January 2006 Bulent Topcu was arraigned on charges that:-
- 1A. While in company with CD (he) did have sexual intercourse with AB, without the consent of AB, knowing that she was not consenting and at the time of the sexual intercourse did maliciously inflict actual bodily harm on her.
- 1B. In the alternative… while in company with CD did have sexual intercourse with AB, without…
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- Case
- [2007] NSWCCA 274
- Decision Date
CaseChat Overview and Summary
The court considered the evidence presented at trial, including medical evidence, witness statements, and the appellants' own admissions. The court found that the trial judges had properly considered the evidence and made findings that the complainant was incapable of consenting due to intoxication. The court held that the trial judges had not erred in their findings and that the convictions were properly based on the evidence presented. The court also rejected the appellants' arguments that the trial judges had failed to properly consider the defence of reasonable belief in consent.
The Court of Appeal dismissed the appeals against conviction. The convictions of Papadopoulos and Topcu for sexual intercourse without consent were upheld. The court found that the trial judges had properly considered the evidence and made findings that the complainant was incapable of consenting due to intoxication, and that the appellants had not established a reasonable belief in consent. The court held that the trial judges' findings were open on the evidence and that there was no error in the proceedings that would warrant interference by the Court of Appeal.
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