R v Dursun - [2000] NSWCCA 68

Reported Decision: [2000] A Crim R 460

New South Wales

Court of Criminal Appeal

CITATION: R v Dursun [2000] NSWCCA 68

FILE NUMBER(S): CCA 60458/1999

HEARING DATE(S): 07/03/00

JUDGMENT DATE:
7 March 2000

PARTIES :

Regina v Durak Dursun

JUDGMENT OF: Sheller JA; James J; Dowd J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/21/2053

LOWER COURT JUDICIAL
OFFICER : O'Reilly DCJ

COUNSEL : CK Maxwell QC - Crown
DM Spears - Respondent

SOLICITORS: SE O'Connor - Crown
Paul Kenny & Associates - Respondent

DECISION: Crown appeal allowed - length of total sentence not changed but length of minimum term increased.

IN THE COURT OF
CRIMINAL APPEAL

No 60458/99

SHELLER JA
JAMES J
DOWD J

TUESDAY 7 MARCH 2000

REGINA v DURAK DURSUN
JUDGMENT
1   SHELLER JA: The court is in a position to give its judgment in this matter and I will ask James J to give the first judgment.
2 JAMES J: This is an appeal by the Crown pursuant to s 5D of the Criminal Appeal Act against a sentence imposed on the respondent Durak Dursun in the District Court on 15 July 1999 by his HonourJudge O'Reilly.
3 On one charge of supplying not less than the commercial quantity of a prohibited drug, namely cocaine, an offence under s 25(2) of the Drug Misuse and Trafficking Act, Judge O'Reilly imposed a sentence of imprisonment for five years, consisting of a minimum term of two and a half years commencing on 14 September 1998, the date of the offence and the date on which the respondent was taken into custody, and an additional term of two and a half years.
4   In sentencing the respondent the sentencing judge took into account four other offences being two offences of supplying a prohibited drug (cocaine), one offence of possessing an unlicensed pistol and one offence of possessing a prohibited drug (cannabis leaf). All of these offences were committed at about the same time as the principal offence and bore some relationship to it.
5   The maximum penalty for supplying not less than the commercial quantity of cocaine is imprisonment for 20 years or a fine of $350,000 or both.
6   The Notice of Appeal was signed by the Director of Public Prosecutions on 12 August 1999 and was served on the respondent on 18 August 1999.
7   In his remarks on sentence the sentencing judge stated the facts of the offence in a way which has not been the subject of any criticism on this appeal. The following is a somewhat abbreviated version of his Honour's statement of the facts.
8   In September 1998 a registered police informant provided information to the National Crime Authority about the drug activities of the respondent. The respondent was then operating a pizza shop on the Hume Highway at Liverpool. The respondent told the informant that at some time in the future he, the respondent, would be able to supply cocaine at a price of $120,000 a kilogram.
9…

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 Dursun

Details

AGLC: R v Dursun [2000] NSWCCA 68
Case: [2000] NSWCCA 68
Decision Date: 7 March 2000

CaseChat Overview and Summary

In this case, the Crown appealed against the sentence imposed on Durak Dursun by the District Court, challenging the length of the sentence and its division into a minimum term and an additional term. The appeal was heard by the New South Wales Court of Criminal Appeal, with Sheller JA, James J, and Dowd J delivering the judgment. Dursun had been convicted of supplying not less than the commercial quantity of a prohibited drug, namely cocaine, under the Drug Misuse and Trafficking Act. The primary legal issue before the court was whether the sentence imposed by the District Court was disproportionately low and whether the division of the sentence into a minimum term and an additional term was appropriate. The Crown argued that the total sentence of five years was low, given the objective seriousness of the offence, and that the discount for assistance provided by Dursun was excessive. The Crown also argued that the minimum term was manifestly inadequate. The Court of Criminal Appeal found that while the total sentence of five years was low, it was not outside the range of sentences within a proper exercise of the sentencing judge's wide discretion. However, the court agreed that the division of the sentence into a minimum term and an additional term was inappropriate. The Court of Criminal Appeal allowed the Crown appeal in part, maintaining the total sentence of five years but dividing it into a minimum term of three and a half years and an additional term of one and a half years. The earliest day on which the respondent will be eligible for release on parole will be 14 March 2002.

Orders