R v Coskun (No 5) - [2022] NSWSC 1216

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Coskun (No 5) [2022] NSWSC 1216
Hearing dates: 5 September 2022
Decision date: 15 September 2022
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Aggregate term of imprisonment of 34 years with a non-parole period of 25 years and 6 months

Catchwords:
CRIME — Murder — Constructive murder — Attempted robbery whilst armed with a dangerous weapon — Found guilty by jury
SENTENCING — Aggravating factors — Home of victim or any other person — Two offenders in company — Three victims – Weapon a loaded pistol— Precise role of offenders in planning and premeditation unknown and found to be neither aggravating nor mitigating – Attempted robbery aggravated by gunshot wounding of victim
SENTENCING — Relevant factors on sentence — Objective seriousness — Subjective case of offender — Disadvantaged childhood and victim of sexual abuse — Impacts of COVID-19 on conditions in custody
SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences — Accumulation, concurrency, and totality — Degree of concurrency and accumulation appropriate for constructive murder and robbery whilst armed with a dangerous weapon — Substantial degree of concurrency appropriate

Legislation Cited:
Crimes Act 1900 (NSW), ss 19A(1), 97(2), 98
Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2), 30E(3), Pt 4 Div 1A, Table item 1A

Cases Cited:
Darcy v R [2022] NSWCCA 54
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
Smale v R [2009] NSWCCA 220

Category: Sentence
Parties: Rex
Cengiz Coskun
Representation:
Counsel:
Ms S Traynor (Crown)
Mr P Coady (Offender)
Solicitors:
Solicitor for Public Prosecutions
Bannisters Lawyers

File Number(s): 2019/105006

Judgment

HIS HONOUR: John Odisho died from a gunshot wound to the head inflicted during the course of a home invasion and attempted robbery of Sargon Odisho at the apartment they shared at Five Dock on 2 April 2019.
Cengiz Coskun is now to be sentenced after having been found guilty by a jury on 24 March 2022 of murder and attempted robbery whilst armed with a dangerous weapon.
The maximum penalty for murder is imprisonment for life. There is also a standard non-parole period which, in the circumstances of this case, is 20 years. The maximum penalty for attempted robbery whilst armed with a dangerous weapon is imprisonment for 25 years and there is no standard non-parole period.^[1] These are the statutory guideposts.
1. Crimes Act 1900 (NSW), ss 19A(1) and 97(2); Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A, Table item 1A.
The Crown does not contend that this is a case warranting imposition of the maximum penalty.

Facts

By way of overview, Mr Coskun was one of two intruders who entered the apartment at 103/50-52 East Street Five Dock at about 3.45am on 2 April 2019, intent on robbing Sargon Odisho of drugs and money. In the events that transpired, John Odisho received a fatal gunshot wound…

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 Coskun (No 5)

Details

AGLC: R v Coskun (No 5) [2022] NSWSC 1216
Case: [2022] NSWSC 1216
Decision Date: 15 September 2022

CaseChat Overview and Summary

In the case of R v Coskun (No 5), the defendant was found guilty by a jury of the crimes of constructive murder and robbery whilst armed with a dangerous weapon. The court was required to determine the appropriate sentence for the defendant's actions, which involved an attempted robbery during which a victim was shot. The legal issues before the court included the identification of aggravating and mitigating factors, as well as the consideration of multiple offences and the appropriate degree of concurrency in sentencing.

The court considered various aggravating factors, including the presence of two offenders, the use of a loaded pistol, and the attempted robbery taking place in the home of the victim. However, the precise roles of the offenders in the planning and premeditation of the crime were found to be neither aggravating nor mitigating. The court found that the attempted robbery was aggravated by the gunshot wounding of the victim. Mitigating factors included the defendant's disadvantaged childhood, victim of sexual abuse, and the impacts of COVID-19 on conditions in custody.

After weighing the aggravating and mitigating factors, the court determined that a substantial degree of concurrency was appropriate in sentencing for the constructive murder and robbery whilst armed with a dangerous weapon. The court considered the objective seriousness of the offences and the subjective circumstances of the offender, ultimately arriving at a sentence that reflected the totality of the defendant's criminal conduct.

The final orders of the court included a sentence for the defendant, taking into account the appropriate degree of concurrency and the specific circumstances of the case. The court's decision balanced the need to hold the defendant accountable for their crimes with consideration of the mitigating factors in their background and current circumstances.

Orders