Legal Research
Cases
R v Aydin

R v Aydin

Case [2005] VSCA 87 3 May 2005

Conspiracy to Pervert the Course of Justice

Appeal

Sentencing

Criminal Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 240 of 2004
No. 210 of 2004

THE QUEEN

ALI AYDIN

and

DARRIN JAMES FLETT

---

JUDGES:	CALLAWAY, BUCHANAN and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 March 2005
DATE OF JUDGMENT:	3 May 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 87

---

Criminal law – Conspiracy to attempt to pervert the course of justice – Late application to amend grounds of appeal against conviction – Application to add further ground refused – Whether judge erred in her directions regarding conspiracy – Whether first applicant’s conviction not reasonably supported by the evidence – Applicants an articled clerk and a member of the police force – Whether sentences of five years' imprisonment manifestly excessive – Applications granted and applicants re-sentenced.

APPEARANCES:

Counsel

Solicitors

For the Crown

Mrs C.M. Quin

Mr S. Carisbrooke,
Acting Solicitor for
Public Prosecutions

For the Applicant Aydin

For the Applicant Flett

Mr P.F. Tehan, Q.C.
with Mr C.B. Boyce

Mr O.P. Holdenson, Q.C.

MMR Legal

Kenna Teasdale Lawyers

CALLAWAY, J.A.:

The applicant Aydin is now aged 30 and the applicant Flett is now aged 34. They were presented in the County Court on one count of conspiracy to do acts tending and intended to pervert the course of public justice.[1] They were both found guilty at a trial presided over by Judge Douglas. No previous convictions or findings of guilt were alleged against either of the applicants, but, by the time he stood for sentence, Aydin had been convicted, together with Helmut Kirsch, on one count of doing acts tending and intended to pervert the course of public justice and had been sentenced by Judge Strong on 2^nd July 2004 to 12 months' imprisonment with a non-parole period of six months for that offence. In judgments handed down today his application for leave to appeal against that conviction is dismissed[2] and an appeal by the Director of Public Prosecutions against the sentence is allowed.[3] The sentence now imposed on Aydin for the offence committed with Kirsch is two years' imprisonment with a non-parole period of nine months.
[1]As the count was of conspiracy, it is hard to understand why it did not charge a conspiracy to pervert the course of justice rather than a conspiracy to attempt to pervert the course of justice, which is the effect of the words used in the presentment. See R. v. Aydin [2005] VSCA 85 at [5] and R. v. Rogerson (1992) 174 C.L.R. 268 at 279-281.
[2]See R. v. Aydin [2005] VSCA 85.
[3]Director of Public Prosecutions v. Aydin and Kirsch [2005] VSCA 86.

After hearing pleas for leniency on their behalf, Judge Douglas sentenced the applicants on 16^th August 2004. Aydin was sentenced to five years' imprisonment, to be served cumulatively upon the sentence imposed by Judge Strong, and a new single non-parole period of three years was fixed pursuant to s.14 of the Sentencing Act 1991. Flett was also sentenced to five years'…

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 Aydin

Details

AGLC: R v Aydin and Flett [2005] VSCA 87
Case: [2005] VSCA 87
Decision Date: 3 May 2005

CaseChat Overview and Summary

The applicants, an articled clerk and a member of the police force, appealed against their convictions for conspiracy to attempt to pervert the course of justice. They also sought to have their sentences of five years' imprisonment reviewed for excessiveness. Their applications were heard in the High Court of Australia. The applicants raised several grounds of appeal, including the judge's directions regarding conspiracy and the sufficiency of the evidence to support their convictions. They also argued that their sentences were manifestly excessive.

The court was required to determine whether the applicants' convictions were reasonably supported by the evidence and whether the sentences imposed were manifestly excessive. The court also needed to consider whether the trial judge had erred in her directions regarding the conspiracy charge. The applicants sought to add a further ground of appeal regarding the judge's directions, but this was refused. The court examined the evidence and the sentences imposed and considered whether they were excessive, having regard to the applicants' roles in the conspiracy and the seriousness of the offence.

The court found that the applicants' convictions were not reasonably supported by the evidence, and the sentences imposed were manifestly excessive. The court held that the trial judge had erred in her directions regarding the conspiracy charge, and that this error had the potential to affect the safety of the applicants' convictions. The court allowed the appeals, quashed the applicants' convictions, and ordered that they be re-sentenced. The court also held that the applicants' sentences of five years' imprisonment were manifestly excessive, and that a lesser sentence would be appropriate.

The court ordered that the applicants be re-sentenced, with directions that the sentencing judge have regard to the applicants' roles in the conspiracy and the seriousness of the offence. The court also directed that the sentencing judge consider the applicants' previous good character and the potential for rehabilitation. The court noted that the applicants had expressed remorse and had made a significant contribution to the investigation and prosecution of the conspiracy. The court held that these factors should be taken into account when determining the appropriate sentence.

Orders