CATCHWORDS:
CRIMINAL LAW
SENTENCING
CROWN APPEAL
whether sentence manifestly inadequate
whether correct maximum penalty taken into account
offence contrary to s 112(2) of Crimes Act
whether error in characterisation of objective seriousness of offence
whether general deterrence taken into account
whether threatened use of a weapon taken into account as an aggravating factor

LEGISLATION CITED:
Crimes Act 1900 s 112(2)
Crimes (Sentencing Procedure) Act 1999 s 3A, s 21A(2)(c), s 9

CATEGORY:
Principal judgment

CASES CITED:
House v King (1936) 55 CLR 499
Markarian v The Queen (2005) 79 ALJR 1048
MLP v Regina [2006] NSWCCA 271
R v Johnson [2004] NSWCCA 140
R v Wall [2002] NSWCCA 42
R v Way (2004) 60 NSWLR 166
Regina v Joel Tory; Regina v Luke Tory [2006] NSWCCA 18
Regina v Millar [2005] NSWCCA 202
Regina v Price [2005] NSWCCA 285
Regina v Shankley [2003] NSWCCA 253

TEXTS CITED:

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/1479
GROVE J
BUDDIN J
PRICE J
11 May 2009

R v TERKMANI

Judgment

GROVE J: I agree with Price J.
BUDDIN J: I agree with Price J.
PRICE J: This is an appeal by the Crown against what is said to be the manifest inadequacy of a sentence imposed upon the respondent in the District Court at Parramatta on 14 November 2008.
The respondent had pleaded not guilty to a single count on an indictment that [he] on 15 December 2004 at Oxley Park did break and enter a dwelling house situated at 71 Canberra Street, and did commit a serious indictable offence therein, namely, assault Dean Phillips, thereby occasioning to him actual bodily harm, in circumstances of aggravation namely, at the time the said Abdullah Terkmani was in company with an unknown male. This was an offence contrary to s 112(2) of the Crimes Act 1900. On 25 August 2008, the jury returned a verdict of guilty.
The Judge sentenced the respondent to a term of imprisonment consisting of a non-parole period of 2 years commencing on 27 August 2008 and expiring on 26 August 2010 with a balance of term of 2 years commencing on 27 August 2010 and expiring on 26 August 2012.
An offence contrary to s 112(2) is punishable by 20 years imprisonment. A standard non-parole period of 5 years imprisonment applies.
There is one ground of appeal which is that the sentence is manifestly inadequate. The Crown submitted that there were a number of discrete errors by the Judge which provide some explanation for the manifest inadequacy of the sentence.…

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 Terkmani

Details

AGLC: R v Terkmani [2009] NSWCCA 142
Case: [2009] NSWCCA 142
Decision Date: 11 May 2009

CaseChat Overview and Summary

The appeal by the Crown concerns the sentencing of Abdullah Terkmani, who was found guilty of an offence contrary to section 112(2) of the Crimes Act. The central issue is whether the sentence imposed by the trial judge was manifestly inadequate. The Crown argues that the trial judge erred in several respects, leading to a sentence that was insufficient. The errors identified by the Crown include the misapplication of the maximum penalty, an incorrect assessment of the objective seriousness of the offence, failure to consider the threatened use of a weapon as an aggravating factor, a lack of consideration for general deterrence, and an overemphasis on the respondent's youth and rehabilitation prospects. These points were not presented as separate grounds of appeal but were grouped together to argue for an inadequate sentence.

The trial judge found that Terkmani, along with an accomplice, had violently attacked Dean Phillips at his home. The attack involved the use of a brick and a knife, resulting in significant physical injuries to Phillips. The Crown contends that these factors warranted a harsher sentence, yet the trial judge's decision did not adequately account for them. The Crown's arguments aim to highlight the perceived deficiencies in the sentencing process, arguing that they cumulatively resulted in a manifestly inadequate sentence.

In assessing the Crown's appeal, the court examined the trial judge's sentencing approach and the factors considered. The court noted the trial judge's characterisation of the offence's seriousness, the application of the maximum penalty, and the weight given to aggravating and mitigating factors. The court found that while the trial judge did not err in every respect, the overall sentence did not sufficiently reflect the gravity of the offence and the need for general deterrence. The court determined that the sentence was indeed manifestly inadequate and allowed the appeal. The matter was remitted to the trial judge for re-sentencing.

The final orders of the court included the allowance of the Crown's appeal on the ground of manifest inadequacy of the sentence, and the matter was remitted to the trial judge for a new sentencing hearing that appropriately considers the relevant factors and ensures that the sentence reflects the seriousness of the offence and the need for general deterrence.

Orders

Orders of the court

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Background

Background to the litigation

There is one ground of appeal which is that the sentence is manifestly inadequate. The Crown submitted that there were a number of discrete errors by the Judge which provide some explanation for the manifest inadequacy of the sentence. The Crown argued that:(i)His Honour was in error as to the applicable maximum penalty. (ii)His Honour was in error in finding that this offence did not fall within the middle of the range of objective seriousness but fell below it and thus was in error in departing from the standard non-parole period on that basis.(iii)His Honour was in error in not taking into account as an aggravating factor the threatened use of a weapon. (iv)His Honour failed to reflect general deterrence in the sentence.(v)His Honour placed too much emphasis on the respondent’s youth and prospects of rehabilitation. None of these matters were advanced by the Crown as separate grounds of appeal. FACTS When sentencing the respondent, the Judge found the following facts (ROS 1-2): “It was about 7.30 on the night of 15 December 2004. Dean Phillips was at home with a friend, Kristina Wren. Mr Philips’ house mate, Anthony Halliwell was away for the weekend. Mr Phillips heard the front door bell ring. He ignored it. It kept ringing. Mr Phillips looked through the front window and saw a man – the jury found beyond reasonable doubt that it was Abdullah Terkmani – standing outside the house. He was standing there with somebody else. Mr Phillips recognised neither of them. The men were demanding to know where Tony Halliwell was. Mr Phillips told them to go away and that he was going to call the police. What happened then must have been a shocking experience for both Mr Phillips and Ms Wren. It is a householder’s nightmare. Mr Terkmani went next and got a brick from a pile of bricks. He threw it through the front window of Mr Phillips’ home. He then produced a knife. He tried to get into the house through the broken window. The other man stayed on the porch while this was happening. Mr Phillips tried to resist Mr Terkmani getting in. The other man helped by pulling the curtain back. Mr Terkmani got in. He demanded that Mr Phillips open the door for his accomplice. Mr Phillips did so, opening the back door. The other man came in. Then they both started punching Mr Phillips with their fists. Mr Phillips fell to the ground and they continued to assault him.The result of the assault was that Mr Phillips ended up with a black eye, a bleeding nose and a tooth that went through his top lip. This left him with blurred vision and a sore jaw. The men kept looking for Anthony Halliwell. The other man produced a syringe. He demanded that Mr Phillips and Ms Wren remove their shirts but they refused. Mr Terkmani who was in another part of the house came back at that time and suggested that they leave. The other man threatened the two with the syringe but then left with Mr Terkmani. A neighbour called the police who arrived a short time afterwards. Mr Terkmani got away but was detected to be the offender because he had left DNA on the brick.”Respondent’s subjective case

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GROVE J

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Ratio Decidendi

Legal Principle Established

Established by: GROVE J

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Citations

AGLC Citation

R v Terkmani [2009] NSWCCA 142

Most Recent Citation

GSH v R; R v GSH [2009] NSWCCA 214

Cases citing this decision · 5 of 5 shown

Pali v The Queen
[2013] NSWCCA 65 Para 1

…R v Terkmani [2009] NSWCCA 142; 195 A Crim R 298 involved a frightening incident in which two men came to the door of the victim's home, looking for another occupant, who was away. Despite being repeatedly advised of that fact, the offender threw a brick through the window of the house, produced a knife and climbed…
Martin v R
[2011] NSWCCA 188 Para 1

…warranted in law. In addition, I am not persuaded that the authorities to which counsel referred dictate a different outcome (see Shaw, Terkmani v R [2009] NSWCCA 142; 195 A Crim R 298 , Ngati v R [2008] NSWCCA 3; 180 A Crim R 384 and Zammit v R [2010] NSWCCA 29).…
Fajloun and Fajloun v The Queen
[2011] NSWCCA 41 Para 1

…he upper end of the middle range of objective seriousness based on the evidence in the case and comparative cases. Reference was made to R v Terkmani [2009] NSWCCA 142 and Maxwell v R [2007] NSWCCA 304; 177 A Crim R 498.…
GSH v R; R v GSH
[2009] NSWCCA 214

…hir v R [2009] NSWCCA 124 SKA v R ; R v SKA [2009] NSWCCA 186 R v NZ [2005] NSWCCA 278; (2005) 63 NSWLR 628 Kershaw v R [2009] NSWCCA 19 R v Terkmani [2009] NSWCCA 142 Ivimy v R [2008] NSWCCA 25 SGJ v R [2008] NSWCCA 258 PARTIES: GSH - Appellant Regina - Crown FILE NUMBER(S): CCA 2007/00013512 COUNSEL: T Game SC - A…
R v Abdullah Terkmani
[2008] NSWDC 358

…MENT OF: Cogswell SC DCJ DECISION: Non-parole period of 2 years. Balance of term of 2 years. NB : THIS SENTENCE WAS APPEALED. PLEASE SEE R V TERKMANI [2009] NSWCCA 142. CATCHWORDS: CRIMINAL LAW - sentence - found guilty by jury - aggravated break enter and commit serious indictable offence - standard non-parole peri…

View all 5 citing cases →

Cases cited in this decision · 10 of 10 shown

MLP v R
[2006] NSWCCA 271 Para 11

…propriate sentence to be imposed: Regina v Shankley [2003] NSWCCA 253. The standard non-parole period is but one aspect of a sentence: MLP v Regina [2006] NSWCCA 271. The maximum penalty serves as a yardstick or a basis of comparison between the case before the Court and the worst possible case: Markarian v The Quee…
R v Tory
[2006] NSWCCA 18 Para 17

…The Judge then discussed the decision of this Court in Regina v Joel Tory, Regina v Luke Tory [2006] NSWCCA 18 and said (ROS at 7): “In Mr Terkmani’s case the offence was similarly of fairly brief duration, although perhaps not as brief as two minutes. I expect the infliction of the bodily violence was spontaneous…
R v Price
[2005] NSWCCA 285 Para 19

…The Judge went on to discuss the decisions of this Court in Regina v Millar [2005] NSWCCA 202 and Regina v Price [2005] NSWCCA 285 and said: “But for those authorities I would have found that this offence fell within the middle of the range of objective seriousness. However, because the offence was committed over a…
R v Millar
[2005] NSWCCA 202 Para 19

…The Judge went on to discuss the decisions of this Court in Regina v Millar [2005] NSWCCA 202 and Regina v Price [2005] NSWCCA 285 and said: “But for those authorities I would have found that this offence fell within the middle of the range of objective seriousness. However, because the offence was committed over a…
Markarian v The Queen
[2005] HCA 25 Para 11

…maximum penalty serves as a yardstick or a basis of comparison between the case before the Court and the worst possible case: Markarian v The Queen (2005) 79 ALJR 1048 at [31].…
R v Johnson
[2004] NSWCCA 140 Para 23

…e is essentially one of fact and as such is reviewable in this Court only on the principles stated in House v King (1936) 55 CLR 499: see R v Johnson [2004] NSWCCA 140 at [36]. The Crown, as has been indicated, contends that the Judge’s finding was not open on the evidence. Before further consideration is given to t…
R v Shankley
[2003] NSWCCA 253 Para 11

…by the presence of a standard non-parole period and is fundamental to a determination of the appropriate sentence to be imposed: Regina v Shankley [2003] NSWCCA 253. The standard non-parole period is but one aspect of a sentence: MLP v Regina [2006] NSWCCA 271. The maximum penalty serves as a yardstick or a basis o…
R v Wall
[2002] NSWCCA 42 Para 12

…sole ground of appeal is the manifest inadequacy of the sentence. A summary of the principles relevant to Crown appeals by Wood CJ at CL in R v Wall [2002] NSWCCA 42 at [70] is often quoted and I do not think it is necessary to repeat that summary here.…
House v R
[1936] HCA 40 Para 23

…eriousness of an offence of its type is essentially one of fact and as such is reviewable in this Court only on the principles stated in House v King (1936) 55 CLR 499: see R v Johnson [2004] NSWCCA 140 at [36]. The Crown, as has been indicated, contends that the Judge’s finding was not open on the evidence. Before…
House v King
Para 23

…he scale of seriousness of an offence of its type is essentially one of fact and as such is reviewable in this Court only on the principles stated in House v King (1936) 55 CLR 499: see R v Johnson [2004] NSWCCA 140 at [36]. The Crown, as has been indicated, contends that the Judge’s finding was not open on the eviden…

Legislation cited in this decision · 2

Crimes (Sentencing Procedure) Act 1999 (NSW)
3A 2 mentions (from Para 4)
Crimes Act 1900 (ACT)
112(2) 2 mentions (from Para 4)