R v Dogan - [2019] NSWDC 385

District Court

New South Wales

Medium Neutral Citation: R v Dogan [2019] NSWDC 385
Hearing dates: 16 April 2019
Date of orders: 16 April 2019
Decision date: 16 April 2019
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
A term of imprisonment of four years, two months with a non-parole period of two years, one months: at [14].

Catchwords: SENTENCING — Mitigating factors — Good character — Plea of guilty — Remorse — Remorse — Unlikely to re-offend
SENTENCING — Relevant factors on sentence — Form 1 offences — Circumstances of offence — Deterrence
SENTENCING — Subjective considerations on sentence — Special circumstances
Legislation Cited: Crimes Act 1901
Drug Misuse and Trafficking Act 1985
Cases Cited: R v Stanbouli [2003] NSWCCA 335
Texts Cited: Nil
Category: Sentence
Parties:
Regina (Crown)
Erkan Dogan (Offender)
Representation:
Mr P Low (Crown)
Mr B Vasic (Offender)

File Number(s): 2018/118046

Judgment

A very powerful subjective case has to be balanced against a very serious offence which carries a maximum penalty of life imprisonment. This is an unusual case because the charge of knowingly take part in the supply of a large commercial quantity of prohibited drug, thought to be 11 kilograms of cocaine, was not in fact that. Erkan Dogan, who has just spent his 33rd birthday in custody after his arrest on 13 April 2018, pleads guilty to a count of knowingly take part in the supply of a large commercial quantity of a prohibited drug under s 25(2) of the Drug Misuse and Trafficking Act 1985, which carries a maximum of life imprisonment with a 15 year standard non-parole period.
There is a Form 1 offence under s 193C(2) of the Crimes Act 1901, of deal with $18,400 being reasonably suspected of being the proceeds of crime. It carries a maximum penalty of three years and will be dealt with in the way suggested by the Chief Justice on the guideline judgment on Form 1 matters.
His plea at an early opportunity entitles him to a 25% discount for the utilitarian value of the plea. It is conceded that there is no alternative but for a term of fulltime custody and it is unnecessary to consider any alternatives.
In short, the facts demonstrate the involvement of an undercover operative (UCO) and a person known only as Liberate through a secure instant messaging service. The facts are very detailed and they set out conversations which the offender had with the UCO. As Mr Vasic points out, a number of his unguarded comments were made when he did not know that he was being recorded, clearly pointing to him having little or no knowledge of the operation. The relevant facts that need to be taken into account in assessing objective seriousness and moral culpability are, as Mr Vasic points out, that the supply was not actually a prohibited drug because Police had previously prepared 11 packages each containing a kilogram of an inert substance resembling cocaine for use in the operation.
Mr Dogan…

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 Dogan

Details

AGLC: R v Dogan [2019] NSWDC 385
Case: [2019] NSWDC 385
Decision Date: 16 April 2019

CaseChat Overview and Summary

The case of R v Dogan involved the defendant, Dogan, who was before the court for sentencing following a plea of guilty to form 1 offences. The court was tasked with determining an appropriate term of imprisonment and a non-parole period, considering both mitigating and aggravating factors. The key legal issues before the court were the extent to which the defendant's good character, his early guilty plea, and his demonstrated remorse should mitigate his sentence, as well as the need for general and specific deterrence given the nature of the offence.

The court gave significant weight to the defendant's early guilty plea, noting that this reduced the need for punishment and allowed for an earlier resolution of the case. Additionally, the court found that Dogan had shown genuine remorse, which was a strong mitigating factor. The court also considered that Dogan had a good character prior to the offence and was unlikely to re-offend. However, the court balanced these mitigating factors against the need for deterrence and the seriousness of the offence committed. Ultimately, the court determined that a sentence of four years and two months, with a non-parole period of two years and one month, was appropriate.

The court's reasoning was based on a comprehensive assessment of all relevant factors. The term of imprisonment reflected the need for punishment and deterrence, while the non-parole period recognised the mitigating factors present in this case. The sentence aimed to balance the need to protect the community with the opportunity for the defendant to rehabilitate and reintegrate.

The final orders of the court were that Dogan was to serve a term of imprisonment of four years and two months, with a non-parole period of two years and one month.

Orders

Orders of the court

A term of imprisonment of four years, two months with a non-parole period of two years, one months: at [14].

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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Medium Neutral Citation:	R v Dogan [2019] NSWDC 385
Hearing dates:	16 April 2019
Date of orders:	16 April 2019
Decision date:	16 April 2019
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	A term of imprisonment of four years, two months with a non-parole period of two years, one months: at [14].
Catchwords:	SENTENCING — Mitigating factors — Good character — Plea of guilty — Remorse — Remorse — Unlikely to re-offend SENTENCING — Relevant factors on sentence — Form 1 offences — Circumstances of offence — Deterrence SENTENCING — Subjective considerations on sentence — Special circumstances
Legislation Cited:	Crimes Act 1901 Drug Misuse and Trafficking Act 1985
Cases Cited:	R v Stanbouli [2003] NSWCCA 335
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown) Erkan Dogan (Offender)
Representation:	Mr P Low (Crown) Mr B Vasic (Offender)
File Number(s):	2018/118046