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

1. 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.

2. 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

3. 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

4. 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.

5. 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.

6. 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.

7. The applicant read the affidavit of his solicitor, Aisha Lopez, of 30 April 2020. She speaks of the anticipated delay in the application for leave to appeal being resolved in the Court of Criminal Appeal, and that it is likely that the custodial component of the sentence will be exhausted before the matter is heard.

THE SUBMISSIONS

8. Counsel provided what he described as embryonic draft submissions and grounds for further refinement before presentation to the Court of Criminal Appeal. There are three grounds presently considered which I summarise thus,

1. Error in the decision to increase the sentence for the principal offence and the extent to which the sentence was thereupon increased;

2. Error in finding that the misconduct fell above mid-range of objective seriousness;

3. Error in failing to give adequate weight to the applicant’s subjective case.

9. In my judgement at paragraph [218] contrary to the Crown’s submission it placed the objective gravity slightly above mid-range. My judgement deals with the other aspects beneath the appropriate headings. It is not here appropriate to respond to the submissions made in support of these proposed grounds, or deal with other aspects of the matter that were agitated in the proceedings before me.

10. The question I must decide is whether to allow the applicant bail. Counsel provided written submissions offering that in combination the grounds below demonstrate that the application in the Court of Criminal Appeal would most likely succeed. These grounds are,

1. The prospect of the appeal is reasonable;

2. The applicant will serve a substantial portion of the non-parole period before the appeal is determined;

3. There is no flight risk;

4. There is no risk of further offences;

5. Pending the appeal he can spend time assisting his wife in the imminent birth of their second child.

11. I have not quoted directly each of these grounds.

12. Counsel conceded that if the first of these is found to be without adequate merit, the other four grounds would not in combination provide sufficient basis for the order to release the applicant.

CONSIDERATION

13. Counsel in the discharge of his duty to the court reminded me of s 22 Bail Act 2013 which provides,

1. Despite anything to the contrary in this Act, a court is not to grant bail or dispense with bail for any of the following offences, unless it is established that special or exceptional circumstances exist that justify that bail decision—

1. an offence for which an appeal is pending in the Court of Criminal Appeal against—

1. a conviction on indictment, or

2. a sentence imposed on conviction on indictment,

2. an offence for which an appeal from the Court of Criminal Appeal is pending in the High Court in relation to an appeal referred to in paragraph (a).

2. If the offence is a show cause offence, the requirement that the accused person establish that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why his or her detention is not justified.

3. Subject to subsection (1), Division 2 (Unacceptable risk test—all offences) applies to a bail decision made by a court under this section.

14. The simple answer to this application is that I am not satisfied that there are special or exceptional circumstances that would warrant this Court to review the decision it made for the determination of sentence upon the synthesis of objective and subjective facts before it, upon the application of the principles identified as relevant to the assessment advanced by the parties and considered by the Court.

15. I have been invited to a passage from El-Hilli and Melville v R [2015] NSWCCA 146, upon which it is said that upon the assessment of special or exceptional circumstances the applicant must show that the appeal is most likely to succeed. This would require this Court to come to a contrary view to that which was reached after considering the submissions that were argued with some commitment in support of the proposition that a sentence to be served by way of an intensive correction order was all that was required in this instance, which of course required an assessment that a sentence of no longer than two years was appropriate. This is not my view of the matter.

16. It is not uncommon for appellants in sentence appeals from the Local Court for determination in the District Court to be granted bail, especially when a relatively short period of custody imposed would be exhausted before the appeal could be heard. Such appeals are as of right, subject to the compliance with the timetables specified for their lodgement, however in the matter to hand the applicant must establish that he should have leave to appeal and if that is granted to persuade the appellate court to intervene. In my experience this application to the Court which sentenced the applicant after a plea of guilty and admission of guilt for an additional offence is novel.

17. The submissions refer to s 65 Bail Act but this does not provide the court with the power to grant this application. It provides,

The District Court may hear a bail application if—

1. the District Court has made an order under section 101 of the Criminal Procedure Act 1986 for the continuation of proceedings before a magistrate and the accused person is before the District Court, or

2. the District Court has made an order under section 20 (1) of the Children (Criminal Proceedings) Act 1987 for the remission of a matter to the Children’s Court and the accused person is before the District Court.

18. However s 62 provides,

A court may hear a bail application for an offence if—

1. the court has convicted a person of the offence, and

2. proceedings on an appeal against sentence or conviction are pending in another court, and

3. the person has not yet made his or her first appearance before the court in the appeal proceedings.

19. I would accept that this section plainly read provides the Court power to grant bail if of the view that the proposed appeal is most likely to succeed.

20. I am not persuaded that this appeal, if leave is granted, has any such prospect of success.

21. I refuse the application for release.

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Decision last updated: 04 May 2020