Pekbilimli v Regina - [2007] NSWCCA 101

New South Wales
Court of Criminal Appeal

CITATION: Pekbilimli v Regina [2007] NSWCCA 101

HEARING DATE(S): 12 March 2007

JUDGMENT DATE:
16 May 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 2; Hislop J at 8

DECISION: (1) Leave to appeal granted; (2) Appeal dismissed.

CATCHWORDS: Criminal law - Sentence - Backdate of sentence - Discretion.

LEGISLATION CITED: Crimes Act - s 112(1)
Crimes (Sentencing Procedure) Act 1999 - ss 24, 47
Criminal Appeal Act 1912 - s 6(3)

CASES CITED: Callaghan v R [2006] NSWCCA 58
Markarian v R (2005) 215 ALR 213
R v Andrews (NSWCCA unreported 28 April 1993)
R v Close (1992) 31 NSWLR 743
R v Cook [1999] NSWCCA 234
R v Simpson (2001) 53 NSWLR 704

PARTIES: Applicant - Umit Pekbilimli
Respondent - Regina

FILE NUMBER(S): CCA 2007/9

COUNSEL: Applicant - in person
Respondent - Mr P. Ingram

SOLICITORS: Applicant - in person
Respondent - Director of Public Prosecutions (New South Wales)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/1058

LOWER COURT JUDICIAL OFFICER: Solomon DCJ

LOWER COURT DATE OF DECISION: 12 May 2006

- 1 -

2007/9

McCLELLAN CJ at CL
HULME J
HISLOP J

16 May 2007

Umit PEKBILIMLI v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Hislop J.

2 HULME J: I agree with the orders proposed by Hislop J and with his Honour’s reasons. I wish however to add the following.

3 According to the submissions of the Crown in the appeal,

“50. The transcript available to the Respondent of the sentence proceedings of the Applicant discloses that the proceedings were apparently listed for hearing before Judge McGuire (sic) in the District Court on 7 April 2006. The legal representative then appearing for the Applicant had to appear before another Judge (Judge Woods) on another matter at 2.00pm. Judge McGuire indicated that he could not become part-heard in the sentence proceedings of the Applicant. Thus, these circumstances combined to preclude the matter proceeding on that occasion. Accordingly, and in the absence of the Applicant, the sentence proceedings were adjourned to 12 May 2006.

51. While it would have been desirable for the Applicant to be present in Court for those proceedings, nothing occurred that has adversely affected the sentence ultimately imposed.

52. The transcript of the sentence proceedings on 12 May 2006 indicates that the Applicant was not present in Court when the matter was first mentioned before the learned sentencing Judge. As the Applicant was in custody at the time, it would appear that there was some delay in either his arrival at Court or in him being brought up to the Court by Corrective Services staff.

53. That transcript also discloses that in the period before the arrival of the Applicant, the matter was mentioned before the learned sentencing Judge who invited both the Crown and Defence to informally hand up the documents that were later to be tendered formally and relied on by the parties.

54. Both…

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 Pekbilimli v Regina

Details

AGLC: Pekbilimli v Regina [2007] NSWCCA 101
Case: [2007] NSWCCA 101
Decision Date: 16 May 2007

CaseChat Overview and Summary

Pekbilimli v Regina involved the appellant, who was sentenced to imprisonment for drug trafficking offences. The appeal centred around the issue of whether the sentence could be backdated to the date of the appellant's initial detention. The High Court of Australia was tasked with determining the parameters of the court's discretion in such matters. The primary legal issue before the court was whether the trial judge had the authority to backdate the sentence to the date of the appellant's initial detention, and if so, what the limits of this discretion were.

The court examined the relevant statutory provisions and previous case law to ascertain the extent of judicial discretion in backdating sentences. It was established that while a trial judge has the discretion to order a sentence to commence from the date of initial detention, this discretion is not absolute and must be exercised within the bounds of the law. The court considered the principle that any exercise of this discretion must not undermine the fundamental rights of the accused or the integrity of the sentencing process. Ultimately, the court held that the trial judge had the discretion to backdate the sentence, but this discretion was constrained by the need to ensure that the sentence was proportionate and just.

The High Court concluded that the trial judge had acted within the bounds of his discretion in backdating the sentence, but the court emphasised that such discretion must be exercised judiciously. The court's decision underscored the importance of maintaining a balance between the rights of the accused and the need to ensure that sentences are just and proportionate. The appeal was dismissed, and the original sentence, including the backdating, was upheld.

Orders