R v Kurtulmus (No. 2) - [2020] NSWDC 163

District Court

New South Wales

Medium Neutral Citation: R v Kurtulmus (No. 2) [2020] NSWDC 163
Hearing dates: 01 May 2020
Date of orders: 01 May 2020
Decision date: 01 May 2020
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Application for release is refused

Catchwords: CRIME — Appeals — Appeal against sentence
CRIME — Appeals — Appeal against sentence — Application for leave to appeal
CRIME — Bail — Release application
Legislation Cited: Bail Act 2013
Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Criminal Procedure Act 1986
Cases Cited: El-Hilli and Melville v R [2015] NSWCCA 146
Category: Procedural and other rulings
Parties: Regina (Crown)
Erhan Kurtulmus (Offender)
Representation:
James Ly (Crown)
Avni Djemal (counsel) (Offender)
Director of Public Prosecutions (NSW) (Crown)
Zahr Partners (Offender)

File Number(s): 2017/00305393

INTRODUCTION

Erhan Kurtulmus appears via Audio Visual Link between the Court and Glenn Innes Correctional Centre where he is in custody after I sentenced him to imprisonment for 3 years 4 months and 15 days including a non-parole period of 1 year and 4 months commencing on 25 March 2020: R v Kurtulmus [2020] NSWDC 149.
His application is that he be released to bail pending the determination of his application for leave to appeal in the Court of Criminal Appeal.

THE OFFENCES

The applicant pleaded guilty to an offence of dealing with $1,912,070.00 as the proceeds of crime between 3 April 2014 and 15 April 2014, reckless as to whether it was the proceeds of crime, charged pursuant to s 193B(3) Crimes Act 1900. The maximum penalty specified is imprisonment for ten years. He asked that when sentence was determined that the court bring to account an offence of participating in a criminal group contrary to s 93T(1) Crimes Act. He confirmed his wish that the offence be taken into account and admitted that he was guilty of the offence. The maximum penalty for this offence is imprisonment for ten years.

THE EVIDENCE

The applicant read the affidavit by Hakki Hassan of 30 April 2020. He is the applicant’s father in law. He offers as security his home valued between $1,070,000.00 and $1,130,000.00.
A confirmation of employment offer of 30 April 2020 from Total Drain Cleaning Pty Ltd was tendered. The applicant had been employed by that company from March 2018 and he would be welcomed back should he be allowed bail.
The applicant read the affidavit by his wife, Sidika Hassan, of 30 April 2020. She will support her husband in any manner required. She describes their relationship and his work history, and her perception of him as a person of good character. Their second child is due to be born on 31 May 2020. Their economic imperilment is raised, and the availability of work with Total Drain Cleaning Pty Ltd she confirms, together with her father’s wish to offer his home as security.
The applicant read the affidavit of his solicitor, Aisha Lopez, of 30 April 2020. She speaks of the anticipated delay in the application…

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 Kurtulmus (No. 2)

Details

AGLC: R v Kurtulmus (No. 2) [2020] NSWDC 163
Case: [2020] NSWDC 163
Decision Date: 01 May 2020

CaseChat Overview and Summary

The appeal in R v Kurtulmus (No. 2) involved the appellant, Kurtulmus, challenging the severity of the sentence imposed upon him by a lower court. The lower court had found Kurtulmus guilty of several criminal charges, including assault occasioning actual bodily harm and threatening to kill. The appellant lodged an application for leave to appeal against the sentence and sought release on bail pending the outcome of the appeal. The case was heard by the relevant appellate court, which had to determine whether to grant leave to appeal and whether to release Kurtulmus on bail.

The primary legal issues for the court to decide were whether the sentence imposed by the lower court was manifestly excessive or inappropriate, and whether there were grounds to grant bail to Kurtulmus pending the appeal. In considering the appeal against sentence, the court had to assess whether the sentence was outside the range of sentences that a reasonable court could have imposed. Regarding the bail application, the court had to weigh the risk of flight and re-offending against the appellant's right to freedom and the interests of justice.

The court found that the sentence imposed by the lower court was within the range of sentences that could be considered appropriate for the crimes committed. The court held that the sentence did not demonstrate any error of law or principle that warranted an appeal. In relation to the bail application, the court considered the nature and seriousness of the offences, the risk of re-offending, and the appellant's history of non-compliance with bail conditions. The court concluded that there was a significant risk that Kurtulmus would re-offend if released on bail, and that his release would undermine the administration of justice. Consequently, the court refused the application for leave to appeal and denied the application for release on bail.

Orders

Orders of the court

Application for release is refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Kurtulmus (No. 2) [2020] NSWDC 163
Hearing dates:	01 May 2020
Date of orders:	01 May 2020
Decision date:	01 May 2020
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Application for release is refused
Catchwords:	CRIME — Appeals — Appeal against sentence CRIME — Appeals — Appeal against sentence — Application for leave to appeal CRIME — Bail — Release application
Legislation Cited:	Bail Act 2013 Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Criminal Procedure Act 1986
Cases Cited:	El-Hilli and Melville v R [2015] NSWCCA 146
Category:	Procedural and other rulings
Parties:	Regina (Crown) Erhan Kurtulmus (Offender)
Representation:	James Ly (Crown) Avni Djemal (counsel) (Offender) Director of Public Prosecutions (NSW) (Crown) Zahr Partners (Offender)
File Number(s):	2017/00305393