R v Ilbay - [2000] NSWCCA 251

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v Ilbay [2000] NSWCCA 251

FILE NUMBER(S):
60084/99

HEARING DATE(S): Wednesday 21 June 2000

JUDGMENT DATE: 21/06/2000

PARTIES:
Regina v Osman Ilbay

JUDGMENT OF: Grove J Newman J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 97/21/0229, 97/21/0230

LOWER COURT JUDICIAL OFFICER: Grogan DCJ

COUNSEL:
L.M.B. Lamprati (Crown)
R.J. Button (Applicant)

SOLICITORS:
S.E. O'Connor (Crown)
T.A. Murphy (Applicant)

CATCHWORDS:
Criminal Law and Procedure
Sentence
Co-offender
Parity
Discrimination in Overall Criminality
Different Multiple Offences
No Special Matter of Principle

LEGISLATION CITED:

DECISION:
Appeal Dismissed

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60084/99

GROVE J
NEWMAN J

Wednesday 21 June 2000

REGINA v OSMAN ILBAY

JUDGMENT

1 GROVE J : This is an application for leave to appeal against severity of sentence imposed by Grogan DCJ in the District Court in Parramatta on 26 February 1999. On that occasion, the applicant was sentenced in respect of an offence that on 22 August 1984 at Dulwich Hill he supplied a quantity of the drug commonly referred to as heroin.

2 His Honour took into account on a Form 1 under the Criminal Procedure Act, five further offences of supply of that drug. The sentence imposed by his Honour was a minimum term of imprisonment of two years and six months with an additional term of one year.

3 The plea of guilty offered by the applicant to the indicted charge was offered after a voir dire hearing which had extended over the previous days. The plea was, in fact, offered on 11 November 1998.

4 It should be observed that the delay arose out of the circumstance that the applicant had, after being charged, absconded from Australia. He returned to Australia voluntarily many years later.

5 This application is centrally based upon an assertion that the applicant can have a justifiable sense of grievance arising out of the sentence which he received from Grogan DCJ when compared with that imposed upon a co-offender Zeki Oygur, who was dealt with by Madgwick DCJ (as he then was) on 17 December 1987.

6 The principles to be applied where an argument asserting disparity is raised are not in doubt. What needs to be demonstrated by the person complaining on the grounds of parity is not that he feels aggrieved but that a reasonable man looking overall at what has happened will see that the offender's grievance is justified. See R v Doggett CCA 24 March 1997 per Sully and Newman JJ.

7 At the time that the applicant appeared for sentence before Grogan DCJ the remarks of Madgwick DCJ made in connection with the sentencing of Oygur as long ago as 1987 were not available. They have since become available and it has been common ground that they may be referred to in this hearing.

8 The initial question to be determined is whether or not sentences imposed on the co-offender were in fact matters which can be used for genuine comparison and subsidiary to that whether therefore, they can give rise to a sense of grievance which is justifiable. It is necessary to look at the proceedings in the earlier case.

9 Oygur appeared for sentence before Madgwick DCJ not only in respect of an offence of supplying heroin which was co-ordinate with the offence of the present applicant, but also in respect of a conspiracy to import a drug into this country. That charge was brought against Oygur pursuant to Commonwealth legislation. The prisoner Oygur had pleaded not guilty to what might conveniently be described as the State offence but was convicted, and he pleaded guilty to the matter charged under Federal legislation.

His Honour's remarks show that he was concerned with the overlap of jurisdiction. When he came to sentence Oygur in respect of the State matter he made this remark:
"I would think that something like for the State crime a three years head sentence with a fifteen months non probation period would be appropriate."
He also indicated that he had in mind something in the order of a twelve year sentence with a six year non parole period for the federal offence.
The prisoner Oygur had been in custody for a period of time and pre sentence custody had to be taken into account. In the event, although his Honour observed that the two offences needed to be dealt with cumulatively, he imposed sentences which were wholly concurrent and, in fact, he actually imposed a sentence for the State offence of three years with a fifteen months non probation period.
I should interpolate that that sentence was imposed prior to the Sentencing Act 1989. That Act itself has also since been repealed and replaced. Nevertheless, it accords with principle that remissions which were available to prisoners sentenced prior to its operation should exceptionally be taken into account where a matter of parity was raised between offenders who were sentenced, one prior to the operation of that Act and one subsequently. Hence, it can be perceived that a sentence of three years with fifteen months non probation period might, in reality, be regarded as keeping an offender in custody for a period something less than the specified non parole period.
The situation with the applicant is quite different in the sense that he, being sentenced pursuant to the now repealed Sentencing Act 1989 will serve the entirety of the minimum term of the component of the sentence imposed by Grogan DCJ.
I return, however, to the proceedings before Madgwick DCJ. Having to deal with the manifestly more serious matter of the conspiracy to import, he finally imposed a sentence of thirteen years four months and nineteen days with a minimum term (non-parole) component of seven years four months and nineteen days. That somewhat apparently irregular sentence was imposed to commence from the date upon which Oygur had been taken into custody and was intended to reflect the general view as to sentence for the Commonwealth offence which his Honour had specified but was also intended to comprehend the criminality for the State offence. This his Honour sought to specify with his final remark which I quote:
"I hope it is clear by now that the actual form of the sentences have been chosen with a view to punishing for the entirety of the criminality involved in relation to the two crimes of which the prisoner is convicted".
Therefore, it needs to be said that although there was an actual sentence imposed in respect of the State offence, its actual quantification involved a certain amount of the hypothetical bearing in mind that what his Honour finally decided to do was to impose an overall sentence in respect of two matters being dealt with concurrently.
I turn then to some matters which are relevant to the general notion of comparison. It was said that Oygur had been higher in what was described as a "drug dealing pyramid" than the applicant. It appears that the evidence before Grogan DCJ persuaded him that Oygur had been the supplier to the applicant and the applicant in turn had been a supplier to customers of his. No challenge was offered to his Honour's finding to that effect.
The effect of his Honour's overall findings was to demonstrate that plainly the applicant was involved in commercial dealing in drugs. If any doubt were to be expressed about that, it would be set aside by the five matters which the applicant asked to be taken into account on the Form 1. Two of the supplies of heroin had, in fact, agreed prior to the offence on the indictment but significantly, in my view, three further offences had occurred after the indicted offence but whilst the applicant was on bail in respect of them. That is an aggravating feature to his offence which is not present in the offence of Oygur, with which it is sought to draw a comparison.
Reference is made to the comparatively poor record of Oygur as against the applicant's absence of prior conviction. That is a matter which obviously must be taken into account in favour of the applicant. Attention is also drawn to the difference in circumstance of Oygur and the applicant in that Oygur went to trial, whereas ultimately the applicant pleaded guilty. I would observe that the plea of guilty came very late in the day, and I am referring to the conduct of the voir dire hearing and the plea of not guilty which was maintained up until after the completion of that hearing, and not to the long period of years in which the applicant, as a result of his absconding, was outside of the country.
I have taken time to describe some of the facets of dealing with these separate offences to demonstrate that, in my view, the sentences imposed on each of the offenders do not manifest a sufficient basis for comparison in order to sustain the argument of disparity. As I have said, Oygur received a sentence which was subsumed in a much longer sentence, and it would be artificial, in my view, to extrapolate the actual sentence in respect of this particular offence imposed upon Oygur and regard that as an appropriate yardstick for comparison. It was, as I have observed, entirely subsumed within another sentence.
What remains, therefore, is to determine whether or not the sentence imposed by Grogan DCJ was in any way excessive or otherwise inappropriate. It has not been shown that his Honour made any error in factual determination and, in my view, the imposition upon the applicant was within the range of the sound exercise of his Honour's sentencing discretion. The applicant was shown to be, as I have commented, a commercial dealer who was, noting the matters on schedule, given to repeat offending even when his liberty was conditional on bail. I propose the applicant have leave to appeal, that leave to appeal be granted but the appeal be dismissed.
NEWMAN J: I agree.
GROVE J: The orders of the Court, therefore, will be as I proposed.

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LAST UPDATED: 12/07/2000