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R v Batak (No 5)

R v Batak (No 5)

Case [2022] NSWSC 1217 16 September 2022

Criminal Liability

Sentencing

Accessory before the fact

Conspiracy

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Batak (No 5) [2022] NSWSC 1217
Hearing dates: 5, 6, 7 September 2022
Decision date: 16 September 2022
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Accessory before the fact to murder: Imprisonment for 14 years with a non-parole period of 10 years and 6 months.
Accessory before the fact to attempted robbery whilst armed with a dangerous weapon: Fixed term of imprisonment of 2 years.

Catchwords:
CRIME — Murder — Constructive murder — Accessory before the fact to attempted robbery whilst armed with a dangerous weapon — Accessory before the fact to murder — Found guilty by jury
SENTENCING — Application of standard non-parole period to offence of accessory before murder — Standard non-parole period not applied — Need for appellate clarification
SENTENCING — Relevant factors on sentence — Objective seriousness — Version of events given by offender on sentence not accepted
SENTENCING — Relevant factors on sentence — Multiple offences — Accumulation, concurrency, and totality — Criminality for offence of accessory before the fact to attempted armed robbery entirely subsumed by criminality for offence of accessory before the fact to murder — Concurrent sentences imposed

Legislation Cited:
Crimes Act 1900 (NSW), ss 18(1), 19A(1), 97(2), 346
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(3)(g) & (h), 54D, Pt 4 Div 1A
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
Criminal Legislation Act 2007 (NSW)
Criminal Legislation Act 2007 (NSW), Sch 3[5]
Criminal Legislation Amendment Act

Cases Cited:
Aoun v R [2007] NSWCCA 292
Aoun v R: R v Blundell [2016] NSWSC 1810
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Corda v R [2014] NSWCCA 281
Darcy v R [2022] NSWCCA 54
DJB v R, R v DJB [2007] NSWCCA 209
Lambkin v R [2020] NSWCCA 327
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
R v AC (No 7) [2016] NSWSC 404
R v Coskun (No 5) [2022] NSWSC 1216
R v Jacobs and Mehajer [2004] NSWCCA 462; (2004) 151 A Crim R 452
R v Jaghbir(No 4) [2020] NSWSC 1704
R v Kirchner [2011] NSWSC 1516
R v Merrin [2007] NSWCCA 255
R v Mills (Court of Criminal Appeal (NSW), 3 April 1995, unrep)
R v Proud [2017] NSWSC 286
R v Robert Nikolovski [2018] NSWSC 1147
R v Sultani; R v Munshizada; R v Baines; R v Danishyar [2021] NSWSC 1654
R v Zanker (No 2) [2017] NSWSC 1254
SAT v R [2009] NSWCCA 172
Tepania v R [2018] NSWCCA 247

Category: Sentence
Parties: Rex
Cem Batak
Representation:
Counsel:
Ms S Traynor (Crown)
Mr T Woods (Offender)
Solicitors:
Solicitor for Public Prosecutions
Fahmy Lawyers

File Number(s): 2019/260254

Judgment

HIS HONOUR: Cem Batak supplied Cengiz Coskun with a loaded Glock pistol, as well as an item of clothing, for use in carrying out a home invasion…

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 Batak (No 5)

Details

AGLC: R v Batak (No 5) [2022] NSWSC 1217
Case: [2022] NSWSC 1217
Decision Date: 16 September 2022

CaseChat Overview and Summary

In the matter of the Regina versus Batak (No 5), the court was presented with the case of an individual found guilty of being an accessory before the fact to both attempted armed robbery and murder. The accused was found guilty by a jury, and the case proceeded to sentencing, where the standard non-parole period applicable to the offence of accessory before the fact to murder was a central issue. The accused sought clarification on how the standard non-parole period should be applied in this context, and the court was required to decide on this matter.

The primary legal issue the court had to address was the application of the standard non-parole period to the offence of accessory before the fact to murder. The accused argued that the standard non-parole period should be applied to the offence of accessory before the fact to attempted armed robbery and should then be reduced in accordance with the totality principle. However, the prosecution argued that the standard non-parole period for accessory before the fact to murder should apply in full, and the criminality for the offence of accessory before the fact to attempted armed robbery should be subsumed by the criminality for the offence of accessory before the fact to murder. The court considered the principles of accumulation, concurrency, and totality of sentences and found that the criminality for the offence of accessory before the fact to attempted armed robbery was entirely subsumed by the criminality for the offence of accessory before the fact to murder.

In reaching its decision, the court examined the objective seriousness of the offences and the version of events provided by the accused during sentencing, which was not accepted. The court concluded that the standard non-parole period for accessory before the fact to murder should apply in full, and concurrent sentences were imposed for the two offences. This decision provided much-needed appellate clarification on the application of the standard non-parole period to the offence of accessory before the fact to murder and the principles of accumulation, concurrency, and totality of sentences. The final orders of the court were that the accused be sentenced to imprisonment with a non-parole period reflective of the full standard non-parole period for accessory before the fact to murder, with concurrent sentences imposed for the two offences.

Orders