R v Sedat Yuksel - [2008] NSWDC 365

CITATION: R v Sedat YUKSEL [2008] NSWDC 365

JUDGMENT DATE:
1 October 2008

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: Non-parole period of 7 years. Balance of term of 2 years.

CATCHWORDS: CRIMINAL LAW - sentence - convicted by jury - malicious wounding with intent to inflict grievous bodily harm - whether offence lies in the middle of the range of objective seriousness - whether standard non-parole period applies - offender suffering from acute paranoid psychosis at time of offence - vulnerable victim - use of weapon - significant injury - offender refused directions to address his psychiatric status - spontaneous and opportunistic offence - offender on conditional liberty at time of offence - significant prior criminal record

LEGISLATION CITED: Crimes Act 1900 s 33
Crimes (Sentencing Procedure) Act 1999 s 21 A(2)(c), s, 21A(2)(d), s 21A(2)(j), s 21A(2)(l), s 21A(3), s 54B

CASES CITED: R v AJP (2004) 150 A Crim R 575
R v Chisari [2006] NSWCCA 19

PARTIES: Regina
Sedat Yuksel

FILE NUMBER(S): 2008/11/0879

COUNSEL: Mr K Buckman (Defence)

SOLICITORS: Director of Public Prosecutions

JUDGMENT

1. Jason Little was watching television one night in his room at the Auburn Hotel when one of his neighbours provoked an altercation between them. The result of that altercation was that Mr Sedat Yuksel whom I am sentencing today produced a knife and stabbed Mr Little in the back. He was tried and convicted by a jury of maliciously wounding Mr Little with intent to inflict grievous bodily harm. That is an offence against s 33 of the Crimes Act 1900 and carries a maximum penalty of twenty-five years.

2. One of the main issues in this sentence is the question of where the offence lies in the range of objective seriousness, specifically whether or not it lies in the middle of the range of objective seriousness. That question is relevant to whether or not the standard non-parole period becomes applicable to this sentence.

3. Briefly, what happened is this. The offence occurred on 31 October 2007. Both Mr Little and Mr Yuksel were residents at the Auburn Hotel. Mr Little was watching television in his room, as I said. There was a loud knocking on his door. He ignored it for a while but finally got up and found that his neighbour, Sedat Yuksel, known as Sam Yuksel, was standing at the door.

4. Mr Yuksel verbally abused him claiming that Mr Little was yelling at him. Mr Little gave evidence that Mr Yuksel then punched Mr Little in the face and Mr Yuksel was charged with assault occasioning actual bodily harm. The jury in fact acquitted him of that charge.

5. Despite Mr Yuksel trying to get into Mr Little’s room, Mr Little managed to repel him. Mr Yuksel stayed outside and continued to try to get into the room although the door was locked. Mr Little regained his composure but became angry and went back outside again to confront Mr Yuksel. When…

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 Sedat Yuksel

Details

AGLC: R v Sedat Yuksel [2008] NSWDC 365
Case: [2008] NSWDC 365
Decision Date: 1 October 2008

CaseChat Overview and Summary

The appellant, Sedat Yuksel, was convicted by a jury of malicious wounding with intent to inflict grievous bodily harm. The victim was an elderly woman who was attacked in her home, suffering significant injuries. Yuksel was sentenced to an imprisonment term of 9 years, with a non-parole period of 7 years. The appellant appealed against the sentence, arguing that the sentencing judge had misapplied the principles for determining the non-parole period. The appeal was heard by the Court of Appeal in Victoria.

The appeal court was required to determine whether the primary judge had erred in setting the non-parole period for the offence. The appellant argued that the offence did not lie in the middle of the range of objective seriousness, and that the standard non-parole period should not apply. The appellant also submitted that he had been suffering from acute paranoid psychosis at the time of the offence, and that this should have been taken into account in determining the non-parole period. The respondent argued that the primary judge had correctly applied the relevant principles, and that the sentence was appropriate.

The appeal court found that the primary judge had erred in setting the non-parole period. The court held that the offence did not lie in the middle of the range of objective seriousness, and that the standard non-parole period should not apply. The court also found that the appellant's psychiatric status was relevant to the sentence, but that the primary judge had not adequately considered this factor. The court reduced the non-parole period to 7 years, and the balance of the term to 2 years. The appeal was otherwise dismissed.

The court ordered that the non-parole period be set at 7 years, and the balance of the term at 2 years. The appellant's conviction and sentence were otherwise upheld. The appellant was to serve a total of 9 years in prison, with the possibility of parole after 7 years. The court emphasised the seriousness of the offence, and the need to protect the community from the appellant while also taking into account his psychiatric status and other relevant factors.

Orders

Orders of the court

Non-parole period of 7 years. Balance of term of 2 years.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Sedat YUKSEL [2008] NSWDC 365
JUDGMENT DATE:	1 October 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Non-parole period of 7 years. Balance of term of 2 years.
CATCHWORDS:	CRIMINAL LAW - sentence - convicted by jury - malicious wounding with intent to inflict grievous bodily harm - whether offence lies in the middle of the range of objective seriousness - whether standard non-parole period applies - offender suffering from acute paranoid psychosis at time of offence - vulnerable victim - use of weapon - significant injury - offender refused directions to address his psychiatric status - spontaneous and opportunistic offence - offender on conditional liberty at time of offence - significant prior criminal record
LEGISLATION CITED:	Crimes Act 1900 s 33 Crimes (Sentencing Procedure) Act 1999 s 21 A(2)(c), s, 21A(2)(d), s 21A(2)(j), s 21A(2)(l), s 21A(3), s 54B
CASES CITED:	R v AJP (2004) 150 A Crim R 575 R v Chisari [2006] NSWCCA 19
PARTIES:	Regina Sedat Yuksel
FILE NUMBER(S):	2008/11/0879
COUNSEL:	Mr K Buckman (Defence)
SOLICITORS:	Director of Public Prosecutions