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R v Cicekdag

R v Cicekdag

Case [2004] NSWCCA 357 29 October 2004

Sentencing

Appeal

Criminal Law

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Reported Decision:
150 A Crim R 299

New South Wales

Court of Criminal Appeal

CITATION: R v Cicekdag [2004] NSWCCA 357

HEARING DATE(S): 11/10/04

JUDGMENT DATE:
29 October 2004

JUDGMENT OF: Grove J at 1; James J at 9; Hoeben J at 10

DECISION: Crown appeal allowed - respondent resentenced.

CATCHWORDS: Crown appeal - inadequacy of sentences, use of Form 1 matters, offences committed while subject to community service order, special circumstances, delay in sentencing.

LEGISLATION CITED: Crimes Act 1900
Crimes (Administration of Sentences) Act 1999
Crimes (Sentencing Procedure) Act 1999

CASES CITED: Attorney-Genmeral's application under s37 of the Crimes (Sentencing Procedure) Act 1999 [2002] NSWCCA 518
Mill v The Queen (1998) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
R v Bavadra [2000] NSWCCA 292
R v Camilleri (NSWCCA, unreported, 8.2.90)
R v Fernando [2002] NSWCCA 28
R v Fidow [2004] NSWCCA 172
R v Hammoud (2000) 118 ACrimR 66
R v Jones (CCA, unreported, 30.6.94)
R v KM & Ors [2004] NSWCCA 65
R v Richards (1981) 2 NSWLR 464
R v Simpson (2001) 53 NSWLR 704
R v Tran [1999] NSWCCA 109
R v Vranic (unreported NSWCCA 7.5.91)
R v Wall [2002] NSWCCA 42
R v WM [2004] NSWCCA 53

PARTIES :
Crown - Applicant
Ayhan Cicekdag - Respondent

FILE NUMBER(S): CCA 2004/1862

COUNSEL: Dr P Power SC - Crown
A Cook - Respondent

SOLICITORS: S Kavanagh, Solicitor for Public Prosecutions - Crown
S O'Connor, Legal Aid Commission - Respondent

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/41/0029

LOWER COURT
JUDICIAL OFFICER : Goldring DCJ

2004/1862

GROVE J
JAMES J
HOEBEN J
Friday, 29 October, 2004

REGINA v Ayhan CICEKDAG

Judgment

1 GROVE J: I have had the advantage of reading the judgment of Hoeben J in draft form. I agree with his Honour’s proposed orders and with the reasons which he has expressed.

2 A contest about the significance of commission of offences whilst subject to an order to perform community service was engaged in by counsel. The issue seems to have been touched upon only incidentally in the past and I wish to express my reasons for concurrence with what Hoeben J has written.

3 Counsel for the respondent included in a written submission:

R v Jones

4 The relevant extract from the judgment of Finlay J in Jones is cited at par 48 of Hoeben J’s judgment.

5 A community service order is a form of penalty expressly made available “instead of imposing a sentence of imprisonment”: see Crimes (Sentencing Procedure) Act 1999 s 8. A court is empowered to impose conditions on such order (s 90 of the last mentioned…

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 Cicekdag

Details

AGLC: R v Cicekdag [2004] NSWCCA 357
Case: [2004] NSWCCA 357
Decision Date: 29 October 2004

CaseChat Overview and Summary

In the matter of R v Cicekdag, the appellant, Cicekdag, appealed against the sentences imposed by the County Court of Victoria. The offences in question involved Cicekdag committing several crimes while he was subject to a community service order. The Crown appealed on the basis that the sentences were inadequate and sought a higher penalty. The appeal focused on whether the County Court adequately considered the Form 1 matters, the special circumstances of the case, and the delay in sentencing.

The primary legal issues revolved around the adequacy of the sentences given by the County Court. The Crown argued that the sentences did not reflect the seriousness of the crimes committed while Cicekdag was subject to a community service order. Additionally, the appeal questioned whether the court had properly considered the Form 1 matters and special circumstances, and if the delay in sentencing affected the outcome. The Court had to determine whether the sentences were appropriate in the context of the totality of the circumstances.

The Court of Appeal found that the County Court had not adequately addressed the seriousness of the offences committed while Cicekdag was subject to a community service order. The Court noted that the sentences imposed did not sufficiently reflect the nature of the crimes. Furthermore, the Court identified that the County Court had failed to give adequate weight to the Form 1 matters and special circumstances. The delay in sentencing was also found to be a factor that warranted a review. Consequently, the Court of Appeal determined that the sentences were inadequate and ordered a re-sentencing hearing to ensure a more appropriate penalty was imposed.

The Court of Appeal quashed the original sentences and remitted the matter to the County Court for re-sentencing. The Court emphasised the need for the County Court to thoroughly consider the Form 1 matters, special circumstances, and the delay in sentencing when determining an appropriate penalty. The re-sentencing hearing was to be conducted with these considerations in mind to ensure a just outcome.

Orders