R v Abdullah Terkmani - [2008] NSWDC 358

CITATION: R v Abdullah TERKMANI [2008] NSWDC 358

JUDGMENT DATE:
14 November 2008

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: Non-parole period of 2 years. Balance of term of 2 years.
NB : THIS SENTENCE WAS APPEALED. PLEASE SEE R V TERKMANI [2009] NSWCCA 142.

CATCHWORDS: CRIMINAL LAW - sentence - found guilty by jury - aggravated break enter and commit serious indictable offence - standard non-parole period - circumstances of aggravation including offender being in company, offender knowing there were persons in the house, offender armed with an offensive weapon, offence planned - age as mitigating factor - prospects of rehabilitation - whether or not within the middle of the range of objective seriousness

LEGISLATION CITED: Crimes Act 1900 s 112(2)
Crimes (Sentencing Procedure) Act 1999 s 21A

CASES CITED: Regina v Way (2004) 60 NSWLR 168
Regina v Joel Tory, Regina v Luke Tory [2006] NSWCCA 18
Regina v Millar [2005] NSWCCA 202
Regina v Price [2005] NSWCCA 285

PARTIES: Regina
Abdullah Terkmani

FILE NUMBER(S): 2007/14794

SOLICITORS: Director of Public Prosecutions
Jn Legal

JUDGMENT

HIS HONOUR: Mr Terkmani I am going to sentence you now. First I give my reasons which will take twenty minutes or so. I read out why I am reaching the decision that I am and then at the end of that I will sentence you and you will hear what the sentence is. Do you understand that?

OFFENDER: Yes.

HIS HONOUR: And I do not tell you in advance what the sentence is because I want you to listen to the reasons.

1. I am sentencing Abdullah Terkmani for a very serious crime. The crime is aggravated break enter and commit serious indictable offence. The serious indictable offence is an assault occasioning actual bodily harm. The crime is against s 112(2) of the Crimes Act 1900. The crime carries a maximum sentence fixed by Parliament of fourteen years imprisonment. Not only that, Parliament has fixed to this crime what is called a standard non-parole period. The standard non-parole period for this crime is five years.

2. The main issue that I need to resolve in sentencing Mr Terkmani is whether or not I apply the standard non-parole period.

3. First I need to say what happened to bring about Mr Terkmani being charged with this crime. It was about 7.30 on the night of 15 December 2004. Dean Phillips was at home with a friend, Kristina Wren. Mr Phillips’ house - mate, Anthony Halliwell, was away for the weekend. Mr Phillips heard the front door bell ring. He ignored it. It kept ringing. Mr Phillips looked through the front window and saw a man - the jury found beyond reasonable doubt it was Abdullah Terkmani - standing outside the house. He was standing there with somebody else. Mr Phillips recognised neither of them. The men were demanding to know where Tony Halliwell was. Mr Phillips told them to go away and that he was going to…

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 R v Abdullah Terkmani

Details

AGLC: R v Abdullah Terkmani [2008] NSWDC 358
Case: [2008] NSWDC 358
Decision Date: 14 November 2008

CaseChat Overview and Summary

The case of R v Abdullah Terkmani involved the defendant who was found guilty by a jury of aggravated break enter and commit serious indictable offence. The court was required to determine an appropriate sentence for the defendant, considering both aggravating and mitigating factors. The case was heard in a court that had the jurisdiction to impose a sentence on a person convicted of such a serious offence.

The legal issues before the court were whether the standard non-parole period was appropriate, given the circumstances of aggravation, and whether any mitigating factors warranted a reduction in the sentence. The court considered factors such as the offender being in company, knowing there were persons in the house, being armed with an offensive weapon, and the offence being planned. The age of the offender and his prospects of rehabilitation were also considered as mitigating factors. The court had to determine whether the sentence was within the middle of the range of objective seriousness.

In delivering the judgment, the court found that the circumstances of aggravation warranted a sentence within the middle of the range of objective seriousness. However, the mitigating factors, particularly the age of the offender and his prospects of rehabilitation, warranted a reduction in the sentence. The court ultimately determined a non-parole period of 2 years, with the balance of the term being 2 years. The sentence was considered appropriate given the totality of the circumstances.

The final orders of the court were for the defendant to serve a non-parole period of 2 years, with the balance of the term being 2 years. It is noted that this sentence was later appealed, as evidenced by the subsequent case of R v Terkmani [2009] NSWCCA 142.

Orders

Orders of the court

Non-parole period of 2 years. Balance of term of 2 years.

NB : THIS SENTENCE WAS APPEALED. PLEASE SEE R V TERKMANI [2009] NSWCCA 142.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Abdullah TERKMANI [2008] NSWDC 358
JUDGMENT DATE:	14 November 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Non-parole period of 2 years. Balance of term of 2 years. NB : THIS SENTENCE WAS APPEALED. PLEASE SEE R V TERKMANI [2009] NSWCCA 142.
CATCHWORDS:	CRIMINAL LAW - sentence - found guilty by jury - aggravated break enter and commit serious indictable offence - standard non-parole period - circumstances of aggravation including offender being in company, offender knowing there were persons in the house, offender armed with an offensive weapon, offence planned - age as mitigating factor - prospects of rehabilitation - whether or not within the middle of the range of objective seriousness
LEGISLATION CITED:	Crimes Act 1900 s 112(2) Crimes (Sentencing Procedure) Act 1999 s 21A
CASES CITED:	Regina v Way (2004) 60 NSWLR 168 Regina v Joel Tory, Regina v Luke Tory [2006] NSWCCA 18 Regina v Millar [2005] NSWCCA 202 Regina v Price [2005] NSWCCA 285
PARTIES:	Regina Abdullah Terkmani
FILE NUMBER(S):	2007/14794
SOLICITORS:	Director of Public Prosecutions Jn Legal