R v Atasoy

Case [2023] QCA 121

SUPREME COURT OF QUEENSLAND

CITATION:

R v Atasoy [2023] QCA 121

PARTIES:

R
v
ATASOY, Saleh
(applicant)

FILE NO/S:

CA No 222 of 2021
SC No 1078 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 12 August 2021 (Williams J)

DELIVERED ON:

9 June 2023

DELIVERED AT:

Brisbane

HEARING DATE:

11 April 2023; 4 May 2023

JUDGES:

Bond and Flanagan JJA and Crow J

ORDERS:

1.   Application for leave to appeal against sentence granted.

2.   Appeal against sentence allowed.

3.   Set aside the sentences of three years imprisonment for each of counts 3 to 8 imposed below.

4.   The applicant is sentenced to imprisonment for two years for each of counts 3 to 8, with such sentences to commence from 12 August 2021.

5.   The sentences of imprisonment of two years for each of counts 3 to 8 are to be served concurrently with each other and with the sentences of imprisonment previously imposed for counts 1, 2, 9 and 10.

6. Set aside the declaration made pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) that the 205 days which the applicant served under the safety order, be declared as time served.

7. Pursuant to s 159A of the Penalties and Sentences Act1992 (Qld), it is declared that 549 days spent in pre-sentence custody between 11 February 2020 and 12 August 2021 is time taken to be imprisonment already served under the sentence.

8.   The parole release date remains fixed at 12 August 2021.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant pleaded guilty to two counts of unlawful possession of a motor vehicle (counts 1 and 2), two counts of possessing a category D weapon (counts 3 and 7), four counts of possessing a category H weapon (counts 4, 5, 6 and 8), one count of possessing a dangerous drug (count 9) and one count of possessing a dangerous drug, in excess of 50 grams (count 10) – where the applicant was sentenced to 12 months imprisonment for each of counts 1 and 2, 3 years imprisonment for each of counts 3 to 8, 12 months imprisonment for count 9 and 18 months imprisonment for count 10 – where each sentence was to be served concurrently – where the applicant appeals, inter alia, on the ground of specific error – where the sentencing judge observed that the applicant knew the nature of the weapons the subject of counts 4 to 8 – where the sentencing judge referred to the applicant being in possession of the dangerous drugs for “personal use” – where the agreed statement of facts did not refer to the applicant knowing the nature of the weapons – where neither the statement of agreed facts nor any submission referred to the applicant being in possession of the dangerous drugs “for personal use”…

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Details
AGLC
R v Atasoy [2023] QCA 121
Case
[2023] QCA 121
Decision Date

CaseChat Overview and Summary

The case of R v Atasoy involved the applicant appealing against his sentence. The applicant had pleaded guilty to various charges including unlawful possession of motor vehicles, possession of weapons and dangerous drugs. He was initially sentenced to concurrent terms of imprisonment. The applicant appealed on several grounds, including the sentencing judge's apparent reliance on incorrect principles. The court needed to determine whether the sentencing judge made a specific error in considering the applicant's knowledge of the weapons and drugs and whether the time spent in custody should be fully recognised in the sentencing process.

The court examined the grounds of appeal, focusing on whether the sentencing judge erred in considering factors not supported by the agreed statement of facts. Specifically, the judge had referred to the applicant knowing the nature of the weapons and the drugs being for personal use, neither of which were supported by the evidence. Additionally, the court considered whether the full time spent in pre-sentence custody should be declared as time served under the sentence. The court had to balance these considerations in exercising its sentencing discretion afresh.

In allowing the appeal and setting aside certain parts of the sentence, the court found that the sentencing judge did indeed act on incorrect principles by considering the applicant's knowledge of the weapons and the personal use of drugs without evidentiary support. The court also determined that the full period of pre-sentence custody should be recognised under the sentence. Consequently, the sentences for certain counts were adjusted, and the full pre-sentence custody period was declared as time served. The new sentences were to be served concurrently with the previously imposed sentences.

The final orders of the court included granting leave to appeal against the sentence, allowing the appeal, setting aside certain sentences, adjusting the terms of imprisonment for specific counts, and declaring the full period of pre-sentence custody as time served. The parole release date was set to remain unchanged.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted.

2. Appeal against sentence allowed.

3. Set aside the sentences of three years imprisonment for each of counts 3 to 8 imposed below.

4. The applicant is sentenced to imprisonment for two years for each of counts 3 to 8, with such sentences to commence from 12 August 2021.

5. The sentences of imprisonment of two years for each of counts 3 to 8 are to be served concurrently with each other and with the sentences of imprisonment previously imposed for counts 1, 2, 9 and 10.

6. Set aside the declaration made pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) that the 205 days which the applicant served under the safety order, be declared as time served.

7. Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), it is declared that 549 days spent in pre-sentence custody between 11 February 2020 and 12 August 2021 is time taken to be imprisonment already served under the sentence.

8. The parole release date remains fixed at 12 August 2021.

Background

Background to the litigation

For the reasons which follow, the application for leave to appeal against sentence should be granted and the appeal allowed. This Court is therefore required to exercise the sentencing discretion afresh.The offending – agreed facts In 2017 a person resident in New South Wales purchased a white Mercedes Benz S63s Coupe for $165,000. It was stolen on 5 January 2019. On 14 June 2019 the applicant purchased the Mercedes for $55,000 from a supplier in New South Wales. He had purchased cars from this supplier previously. On 17 July 2019 the applicant was pulled over by police while driving the Mercedes. The registration plates attached to the motor vehicle were Victorian. When questioned by police as to why the motor vehicle had Victorian number plates the applicant stated that he had recently purchased the motor vehicle. Subsequent to being intercepted by police the applicant raised the issue with the supplier. On 11 November 2019 the supplier instructed the applicant to hand in the Victorian number plates and obtain new registration in two weeks. On 12 November 2019 the applicant attended the Queensland Department of Transport and Main Roads in order to deregister the Mercedes. He returned the registration plates and received a refund for the remainder of the registration period. He maintained possession of the Mercedes at his property. On 3 December 2019, the property was searched by police. No registration plates were attached to the Mercedes which was in the garage. The car keys were located on the kitchen bench inside the applicant’s house. The VIN number on the side door did not match the VIN number on the engine. The applicant informed police that the car was his “mates’” and that it was unregistered. At sentencing it was accepted that the applicant was taken to be in unlawful possession of the Mercedes (count 1) on the basis that following his conversation with the supplier on 11 November 2019 the applicant was aware that his continued possession of the Mercedes after this date was unlawful. Count 2 concerned the unlawful possession of a 2016 Toyota Hilux. This vehicle had been purchased for $48,000 in 2017 and was stolen on or about 31 March 2019. On 25 June 2019 the applicant, after speaking to the supplier, purchased the vehicle for $15,000. The applicant then on-sold the Hilux on 5 July 2019 for $28,000. The purchaser subsequently contacted the applicant because his mechanic had found a fake VIN number sticker on the engine which matched an interstate Toyota Corolla. The Queensland Department of Transport and Main Roads was informed. The applicant thereafter contacted the supplier who requested the applicant to exchange his Holden Colorado utility with the stolen Hilux. The applicant swapped his utility with the Hilux on 27 November 2019. At sentencing it was accepted that when the applicant took possession of the Hilux on 27 November 2019 he was aware that his possession was unlawful. When police searched the applicant’s house and property on 3 December 2019, the keys to the Hilux were found on a chair in the applicant’s kitchen with the motor vehicle being “nearby”.[1][1]Schedule of facts, RB 75, paragraph 20.

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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