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: R v Blundell [2016] NSWSC 1810
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
DJB v R, R v DJB [2007] NSWCCA 209
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 Mills (Court of Criminal Appeal (NSW), 3 April 1995, unrep)
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
Category: Sentence Parties: Rex
Cem BatakRepresentation: Counsel:
Solicitors:
Ms S Traynor (Crown)
Mr T Woods (Offender)
Solicitor for Public Prosecutions
Fahmy Lawyers
File Number(s): 2019/260254
Judgment
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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…
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- AGLC
- R v Batak (No 5) [2022] NSWSC 1217
- Case
- [2022] NSWSC 1217
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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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