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…
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.
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Details
AGLC
R v Ilbay [2000] NSWCCA 251
Case
[2000] NSWCCA 251
Decision Date
CaseChat Overview and Summary
The case of R v Ilbay involved the defendant, Ilbay, who was convicted of multiple offences committed in conjunction with co-offenders. The appeal before the court was against the sentences imposed on Ilbay, with the primary contention being that the sentences were discriminatory and did not adhere to the principle of parity with his co-offenders. The High Court of Australia was tasked with determining whether the sentences met the legal standards required for parity and whether the sentences imposed were justified given the nature and extent of Ilbay's involvement in the crimes.
The court was required to decide whether the trial judge had correctly applied the principle of parity in sentencing Ilbay. This principle mandates that sentences imposed on co-offenders should reflect the relative culpability of each offender. The court also had to assess whether the trial judge appropriately considered the totality of the offending, including the differentiation between multiple offences committed by Ilbay and his co-offenders. Additionally, the court needed to determine if the trial judge had adequately addressed any special matters that might have warranted a departure from the principle of parity.
The court found that the trial judge had indeed considered the principle of parity and the overall criminality of Ilbay in imposing the sentences. It was noted that Ilbay's involvement in the different offences was distinct from that of his co-offenders, justifying different sentences. The court held that there was no special matter of principle that warranted a departure from the principle of parity. The sentences were deemed appropriate given the circumstances and the relative culpability of Ilbay compared to his co-offenders.
The High Court upheld the sentences imposed on Ilbay, affirming that the trial judge had correctly applied the legal principles in sentencing. The court found that there were no errors in the application of the principle of parity or in the consideration of the overall criminality and the nature of the multiple offences. Consequently, the appeal was dismissed, and the original sentences remained in place.